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Venkata Sriramam Konduri vs Smt. Geeta Siva Tejaswi … on 29 April, 2020

THE HON’BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HON’BLE SRI JUSTICE A. ABHISHEK REDDY
F.C.A. No. 172 OF 2019
JUDGMENT: (per the Hon’ble the Chief Justice Sri Raghvendra Singh Chauhan)

The appellants have challenged the legality of the order

dated 22.08.2019, passed by the Judge, Family Court, L.B.

Nagar, R. R. District in I.A. No. 1336 of 2019 in G.W.O.P. No.

28 of 2019. By the said order, the learned Family Court has

rejected the application filed by the appellants under Order

VII Rule 11 C.P.C. seeking dismissal of the plaint filed by the

respondent, Smt. Geeta Siva Tejaswi Teegavarapu, wherein

the respondent had sought the custody of her minor child,

Master Venkata Ashrit under Section 6 of the Hindu Minority

and Guardianship Act, 1956 (‘the Act’ for short).

Briefly, the facts of the case are that in 2006, the

appellant No. 1, Mr. Venkata Sriramam Konduri went, and

settled in the United States of America. The appellant No. 1

and the respondent got married on 08.02.2014 at Ahobila

Mutt, Tirumala, Andhra Pradesh in accordance with the

Hindu rites and customs. After the marriage, on 10.04.2014,

both the appellant No. 1 and the respondent moved to United

States. The couple resided at 3103, Stone Water, Glen L N

Cary, NC 27519. During their stay, and during their wedlock,

on 28.05.2018, a son, Venkata Ashrit was born at the Duke

Medical Centre, North Carolina. Since the child was born in

the United States, he became a United States citizen by

naturalization.

2

However, after the birth of the son, for reasons best

known to the parties, certain disputes erupted between the

appellant No. 1 and the respondent. Apprehending that the

respondent may remove the child from his custody, on

15.10.2018, the appellant No. 1 initiated a child custody

proceeding before the District Court, County of Wake, North

Carolina, U.S.A. By order dated 15.10.2018, the learned

District Court granted a temporary emergency, and exclusive

legal and physical custody of the minor child to the appellant

No.1. The learned District Court further directed that the

minor child should not be removed by either party from the

County of Wake pending hearing. As the differences

continued to mount between the appellant No.1 and the

respondent, on 21.10.2018, the respondent left United States

along with her mother while leaving the minor child in the

appellants’ care.

According to the appellants, since the minor child had

to undergo the tonsure ceremony, on 19.03.2019, the child

was sent to India along with his parental grandmother, Mrs.

Konduri Naga Maheshwari, the appellant No. 3 before this

Court.

Coming to know that the child has been brought to

India by the appellant No. 3, the respondent filed a petition

under Section 6 of the Hindu Minority and Guardianship Act,

before the learned Family Court for seeking the custody of the

minor child, Venkat Ashrit, and for restraining the appellants
3

from removing the child from the jurisdiction of the Family

Court in Hyderabad. On 04.05.2019, the learned Family

Court passed an ad interim injunction order in favor of the

respondent thereby restraining the appellants from removing

the child from the jurisdiction of the Family Court, R.R.

District. Moreover, by order dated 16.05.2019, the learned

Family Court directed the appellants to surrender the

passport of the minor child within a period of two weeks.

Since the appellants were aggrieved by the initiation of

the custody proceeding before the learned Family Court, the

appellants filed an application under Order VII Rule 11 C. P.

C. wherein they challenged the very jurisdiction of the learned

Family Court to try to suit. The appellants contended that

since the minor child was not the “ordinary resident” of

Hyderabad, was a permanent resident of County of Wake,

North Carolina the learned Family Court did not have the

jurisdiction to try the suit. However, by the order dated

22.08.2019, the learned Family Court dismissed the said

application. Hence, this appeal before this Court.

Mr. Prabhjit Jauhar, the learned counsel for the

appellants, has raised the following contentions before this

Court:-

Firstly, Order VII Rule 11(d) CPC clearly states that a

plaint may be rejected if the suit appears from the statement

in the plaint to be barred by any law.

4

Secondly, according to Section 9(1) of the Guardians

and Wards Act, 1890 (the Act, for short), an application with

respect to the guardianship of the person of a minor shall be

made to the District Court having jurisdiction “in the place

where the minor ordinarily resides”. Therefore, the District

Court would have the jurisdiction if and only if the minor

were “ordinarily residing” within the jurisdiction of the District

Court. But in the present case, the minor child was not

“ordinarily residing” within the jurisdiction of the learned

Family Court. Hence, the application filed under the Act was

not maintainable, as it was barred by Section 9 of the Act.

Thirdly, relying on the case of Smt. Jeewanti Pandey v.

Kishan Chandra Pandey1, the learned counsel has

emphasized that in order to give jurisdiction, on the ground of

“residence”, something more than a temporary stay is

required. It must be more or less of “a permanent character”,

and of such a nature that the court in which the respondent

is sued, is “his natural forum”. For, the expression “resides”

means to make an abode for a considerable time; to dwell

permanently, or for a length of time; or to have a settled

abode for a time. However, the residency cannot be imputed

if there is a temporary visit to a place.

Fourthly, undoubtedly, the parties were residing in the

United States from 2014 till 2019 i.e. for a five long years.

While the parties were living in North Carolina, the minor

1
(1981) 4 SCC 517
5

child was born in America on 28.05.2018. By the sheer fact

of his birth in the United States, the child is a citizen of the

United States. Therefore, the child happens to be a

permanent resident of the United States. Moreover, the child

was brought to India for performance of a religious ceremony,

namely tonsuring of the head. Therefore, his stay in

Hyderabad was for a temporary period, and not for a

permanent period. Hence, it cannot be said that the minor

resides ordinarily in Hyderabad. Therefore, the learned

Family Court at Hyderabad would not have the jurisdiction to

try the case. Therefore, the plaint ought to have been rejected

under Order VII Rule 11(d) CPC.

Fifthly, the respondent has, in fact, approached the

learned Family Court with unclean hands. For, in her

petition, the respondent nowhere revealed that by order dated

15.10.2018 the District Court, Wake County, North Carolina

had passed an ad interim order in favor of the appellant No. 1

while giving him the temporary custody of the child.

Therefore, the custody petition deserves to be dismissed on

this ground alone.

Lastly, relying on the case of Lahari Sakhamuri v.

Sobhan Kodali2, and on the case of Yashita Sahu v. State of

Rajasthan3, the learned counsel has pleaded that the former

case not only arose from an order passed by the High Court

for the State of Telangana and for the State of Andhra

2
(2019) 7 SCC 311
3
2020 SCC OnLine SC 50
6

Pradesh, but also has a similar factual foundation as the

present one. In the case of Lahari Sakhamuri (supra), the

Hon’ble Supreme Court summarized the law on the issue of

child custody in cases where the parents are residing in a

foreign country; where children are born in a foreign country,

where the parents and/or the children have become citizens

of a foreign country; and where the child is brought to India

and a custody dispute with regard to the child begins in

India. Dealing with these factual foundations, the issue

whether in such circumstances, a custody petition can be

filed by either of the parents in India or not has been dealt

with.

In the case of Lahari Sakhamuri (supra), the Hon’ble

Supreme Court was dealing with two orders passed by the

High Court for the State of Telangana and the State of Andhra

Pradesh, namely the first order whereby the High Court had

concluded that the Family Court had no jurisdiction to hear a

custody petition since the child therein were not ordinarily

residing within Hyderabad. And secondly, while dealing with

a habeas corpus petition filed by the father, Sobhan Kodali,

the High Court directed the mother to handover the custody

of the children to the father so that the children could be

returned back to the United States.

Similar issued had also arisen in the case of Yashita

Sahu (supra), wherein the Hon’ble Supreme Court again

directed that the custody of the child should be handed over
7

to the father so that the child could be taken back to the

foreign country. According to the learned counsel, the

present case is squarely covered by the two judgments.

Hence, he heavily relied on the same.

On the other hand, Mr. D. Madhava Rao, the learned

counsel for the respondent, relying on the case of Ruchi

Majoo v. Sanjeev Majoo4, has pleaded that the said case also

dealt with the issue of child custody wherein the couple was

residing in the United States, the mother and the child came

back to India and a custody petition was filed in a Delhi

Court. Therefore, the issue before the Apex Court was

whether the order passed by the High Court of Delhi holding

that the Courts at Delhi had no jurisdiction to entertain a

custody petition filed by the mother, was legally justified or

not? While dealing with the issue, the Apex Court clearly

opined that, in fact, the Courts at Delhi did have the

jurisdiction to hear the custody petition. Therefore, the Apex

Court set aside the impugned order passed by the High Court

of Delhi. Similar is the issue in the present case. Therefore,

the learned Family Court was justified in holding that it does

have the jurisdiction to hear the petition. Hence, the learned

Family Court was justified in dismissing the application filed

by the appellants under Order VII Rule 11 CPC.

Secondly, the learned counsel for the appellant is

unjustified in claiming that the respondent has approached

4
AIR 2011 SC 1952
8

the learned Family Court with unclean hands. Since the

order dated 15.10.2018 was never served upon the

respondent, the respondent had no knowledge about the

existence of the said order. Moreover, the respondent had

clearly stated in her application before the learned Family

Court that she was informed by the American police that her

husband had filed a case against her. Therefore, the

respondent had revealed all the relevant facts before the

learned Family Court.

Thirdly, it is the appellant No. 1 who has violated the

order passed by the District Court, Wake County, North

Carolina. For, according to the order dated 15.10.2018

passed by the District Court, it had debarred the removal of

the child from United States except by the parties therein.

However, the child was brought not by appellant No. 1, the

father, but by the grandmother of the child, i.e., appellant No.

3. Therefore, the appellants, who have violated the said

order, cannot be permitted to take the benefit of the very

same order, and claim that the custody of the child was given

to the appellant No. 1 by the learned District Court, in County

of Wake.

Fourthly, the learned Family Court is justified in

holding that the issue of jurisdiction is a mixed question of

fact and law which will require a complete trial before the said

issue can be decided in favor of either of the parties.
9

Therefore, the learned counsel has supported the impugned

order.

Lastly, although the appellants claim that the child was

sent for performing the tonsure ceremony, according to the

respondent, the child was sent for better up-keeping. For, the

appellant No.1, being a single parent, could not take care of a

one and half year old child in the absence of the mother.

Therefore, in fact, the child was sent back to India for being

looked after by the grandparents. Hence, the intention of the

parties was that the child should stay in India. Therefore, the

child is an ordinary resident of Hyderabad. Hence, the

learned Family Court, R.R. District would have the necessary

jurisdiction to try the case.

Heard the learned counsel for the parties, perused the

impugned order, and examined the record submitted by the

parties.

The contentions raised by both the learned Counsel are

highly misplaced. The learned counsel for the appellant has

vehemently argued, on the basis of Section 9 of the

Guardians and Wards Act, that the learned Family Court does

not have the jurisdiction to try the suit. However, neither the

learned Counsel for the appellant, nor the learned Counsel for

the respondent, nor the learned Family Court has noticed the

fact that the suit for child custody is not filed under the

Guardians and Wards Act. In fact, the said suit is filed under

Section 6 of the Hindu Minority and Guardianship Act.
10

Therefore, the provisions of the Guardians and Wards Act are

inapplicable to the present case. Hence the submissions,

based on Section 9 of the Guardians and Wards Act, are

misplaced.

Moreover, since the suit was filed under Section 6 of the

Hindu Minority and Guardianship Act before the learned

Family Court, the issue is whether the learned Family Court

has the jurisdiction to try the suit under the Family Court Act

or not?

Section 7 (1) (g) of the Family Court Act, clearly defines

the jurisdiction of the Family Court, as under:

Section 7. Jurisdiction.‐
(1) Subject to the other provisions of this Act, a Family Court shall‐ ‐(1) Subject to
the other provisions of this Act, a Family Court shall‐”

(a) xxx

(b) xxx

(c) xxx

(d) xxx

(e) xxx

(f) xxx

(g) a suit or proceeding in relation to the guardianship of the person or the
custody of, or access to, any minor.

Thus, under the above provision the Family Court

would have the jurisdiction to entertain an application under

the Hindu Minority and Guardianship Act.

Further, according to Section 8 of the Family Court Act,

once a Family Court is established, then the jurisdiction of

other civil court is ousted. Furthermore, Section 10 of the

Family Court Act permits the Family Court to proceed

according to the provisions of the Civil Procedure Code.
11

Hence, the issues about the institution of the suit and the

jurisdiction of the court would necessarily have to be

examined in light of the relevant provisions of the Civil

Procedure Code.

Section 9 of the C. P. C. bestows jurisdiction upon the

civil courts to hear civil suits, unless there is an express or

implied bar to trying of a civil suit. Moreover, according to

Section 20 of the C. P. C. a suit shall be instituted either at

the place where the defendant resides, or where the cause of

action, or a part of cause of action arises. In the present case,

the child, at the relevant time, was in the custody of the

appellant Nos. 2 and 3. Appellant Nos.2 and 3 are residing in

Hyderabad. They were arrayed as defendants before the

Family Court. Therefore, the suit could be filed against the

appellant Nos. 2 and 3 in the Family Court situated in

Hyderabad. Further, since the child, at the relevant time, was

also in Hyderabad, the issue with regard to the custody of the

child, the cause of action, also arose in Hyderabad. Therefore,

the concerned Family Court in Hyderabad would have the

jurisdiction to try the suit.

The learned Counsel for the appellant has strenuously

relied upon the case of Lahari Sakhamuri (supra). However,

the reliance on the said judgment is equally misplaced. For,

in the said case, the application for seeking the custody of the

children was filed under the Guardians and Wards Act.

Hence, the discussion and the finding with regard to the
12

jurisdiction of the Court centered around the scope and ambit

of Section 9 of the Guardians and Wards Act. However, as

pointed out above, in the present case the petition has not

been filed under the Guardians and Wards Act, but under the

Hindu Minority and Guardianship Act. Hence, the discussion

with regard to the ambit and scope of Section 9 of the

Guardians and Wards Act, valid as it is, is not germane to the

issue of jurisdiction under the Hindu Minority and

Guardianship Act, or under the Family Court Act. Each Act

has to be read per force within its own ambit and scope.

Thus, the decision pronounced by the Hon’ble Supreme Court

in relationship to another Act is not germane to the present

case.

Similarly, the learned counsel for the respondent has

relied upon the case of Ruchi Majoo (supra), but even the

said case was under the Guardians and Wards Act. Hence,

even the said case does not rush to the rescue of the

respondent.

In the impugned order the learned Family Court has

missed the wood for the trees. The learned Family Court has

noticed that the entire thrust of the appellants’ plea was with

regard to the fact that the minor was not “ordinarily residing”

in Hyderabad. But the issue with regard to the “ordinary

residence of the minor” is irrelevant while entertaining a

petition under the Hindu Minority and Guardianship Act. The

issue is foreign to the said Act. Therefore, the learned Family
13

Court has failed to see the controversy in the proper

perspective under the relevant law.

Since the learned Family Court has misapplied itself,

this Court has no other option but to set aside the impugned

order dated 22.08.2019, and to remand the case back to the

learned Family Court with the direction to decide the

application filed by the appellants under Order 7 Rule 11 C.

P. C. within a period of two months from the date of receiving

the certified copy of this judgment. Needless to say, the

parties shall be free to raise their respective contentions

before the learned Family Court. Furthermore, the Family

Court shall not be influenced by the opinion of this court

expressed hereinabove.

With these directions, the appeal is hereby disposed of.

Miscellaneous petition, pending if any, shall stand closed.

There shall be no order as to costs.

(RAGHVENDRA SINGH CHAUHAN, CJ)

__
(A. ABHISHEK REDDY, J)

29.04.2020
Tsr
14

THE HON’BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HON’BLE SRI JUSTICE A. ABHISHEK REDDY

F.C.A. No. 172 OF 2019
(per the Hon’ble the Chief Justice Sri Raghvendra Singh Chauhan)

.04.2020

Tsr

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