M.U. Ponnanna vs Vishma M.P.

Mohan M. Shantana Goudar, J.—In all these three appeals, three separate orders dated 2.3.2015 passed by the learned Sr. Civil Judge, Virajpet, in M.C. No. 18/2013 on I.A. Nos. 2, 3 and 4, are called in question in these appeals.

I.A. No. 2 was filed by the appellant herein; whereas I.A. Nos. 3 and 4 were filed by the respondent in these appeals before the Trial Court. I.A. No. 2 was filed by the appellant seeking custody of the female child aged about 5 years viz., Manya Muthamma. I.A. No. 3 was filed by the respondent herein seeking interim custody of the very child during the subsistence of I.A. No. 4. I.A. No. 4 was filed by the respondent seeking permanent custody of the very child. All these applications were heard together by the Trial Court. However, separate orders are passed on the very day i.e., 2.3.2015, which are impugned in these appeals.

Records reveal that the appellant herein M.U. Ponnanna is the husband of the respondent herein. Out of the wedlock a female child viz., Manya Muthamma is born. Now the child is aged about 5 years. In the meanwhile, the matrimonial differences arose between the appellant and the respondent. As they could not continue and live together as husband and wife, they filed joint petition under Section 13-B of the Hindu Marriage Act (Hereinafter referred to as ''the Act'') seeking divorce by consent. The said petition was numbered as M.C. No. 18/2013.

In support of the joint petition filed under Section 13B of the Act both the parties appeared before the Court and tendered their evidence in respect of the joint divorce petition. Both of them supported all the contents of the joint divorce petition. Accordingly, the decree came to be passed on 24.4.2013 by the Senior Civil Judge, Virajpet in M.C. No. 18/2013 dissolving the marriage solemnized between the parties. However, in the operative portion of the judgment as well as in the decree passed in M.C. No. 18/2013, due to inadvertence, there was no mention of the custody of the child. It is relevant to note that in the body of the judgment passed by the Trial Court in M.C. No. 18/2013 the Court below has clearly mentioned about the custody of the child should be as per agreement between the parties. The parties agreed before the Trial Court in their joint petition for consent divorce as under:--

"9. The petitioners further agree that a Girl Child by name Manya Muthanna, aged 4 years will be in custody of the 1st petitioner (Mother) till Majority, who shall take care of the welfare and interest of the child and the 2nd petitioner undertakes to meet all educational expenses of the child."

(emphasis supplied)

Since the very averments were reiterated before the Trial Court in M.C. No. 18/2013 during the course of the evidence, the Trial Court proceeded to observe in the body of the judgment that the parties have agreed that the custody of the child should be with the respondent/wife till the child attains the age of majority. It is also agreed between the parties that the appellant herein i.e., M.U. Ponnanna (Father of the child) has undertaken to meet all the educational expenses of the child. However, as aforementioned the operative portion of the judgment in M.C. No. 18/2013 did not mention regarding the custody of the child. Hence the respondent herein filed the appeal before this Court in MFA No. 5342/2013 seeking clarification regarding custody of the child, which came to be allowed with the following observations:--

"The trial judge after recording the statement of the parties came to the conclusion that husband and wife cannot live together on account of the incompatibility and that there is no collusion in filing petition, allowed the petition. Accordingly, marriage solemnized between them was dissolved. While dissolving the marriage solemnized between the parties herein, by oversight, the trial court did not consider the custody of the minor daughter Manya Muthamma. Aggrieved by the non-consideration of the request of the parties that the daughter shall be with the mother till she attains the age of majority, the present appeal is filed for modification of the judgment and decree.

Mr. Ravindranathan Kamath, learned counsel appearing for the respondent-husband contends that no appeal lies against the order passed under section 13-B of the Hindu marriage Act and request''s the court to dismiss this appeal.

Having heard the learned counsel for the parties, we are of the view that since an error is committed by the trial court in not considering the custody of the child even though the parties have specifically agreed that the daughter shall be under the care and custody of her mother till she attains the age of majority, it is always open for the appellant to make necessary application before the trial court for review.

Granting such a liberty, this appeal stands disposed of.

If such an application is filed by the appellant, the trial court shall consider the request of the appellant in view of the specific agreement entered into between the husband and wife in regard to the custody of the minor child."

(emphasis supplied)

Pursuant to the aforementioned order of this court in MFA No. 5342/2013 (MC) the appellant herein filed I.A. No. 2 seeking custody of the child whereas I.A. Nos. 2 and 3 were filed by the respondent - mother also seeking for interim custody as well as the permanent custody of the child. It is needless to observe that I.A. Nos. 2, 3 and 4 filed by the parties were pursuant to the observations made by this Court in MFA No. 5342/2013 (mentioned supra). By virtue of the impugned orders, the Trial Court has allowed the applications filed by the respondents herein and dismissed the I.A. 2 filed by the appellant. Those orders dated 2.3.2015 are assailed in these appeals.

Sri Ravindranath Kamath, learned Advocate for the appellants taking us through the material on record submits that this Court had permitted the respondent herein to file application for review of its order relating to the custody of the child and it did not permit the respondent to file application under Section 26 of the Hindu Marriage Act seeking custody of the child. Thus according to him, the impugned orders which are passed on the applications filed by the parties under Section 26 of the Act are bad in the eye of law. The appeals are opposed by Sri M.T. Nanaiah, learned Senior Advocate assisted by Sri. Prabhugoud B. Tumbigi. The respondents counsel submit that the impugned orders are just and proper inasmuch as the same are passed pursuant to the order passed by this Court in MFA No. 5342/2013 and pursuant to the agreement between the parties.

It is not in dispute that the child Manya Muthamma was aged about four years as on the date of filing of the consent divorce petition by both the parties under Section 13-B of the Act; it is not in dispute that by filing consent divorce petition, both the parties agreed to get the marriage dissolved; it is not in dispute that both the parties agreed that the child viz., Manya Muthamma will be in the custody of the respondent-mother till the child attains majority and that the respondent-mother shall take care of the welfare and interest of the child; it is also not in dispute viz., father of the child has undertaken to meet all the educational expenses of the child; it is also not in dispute that the consent divorce application filed under Section 13-B of the Act was duly signed by both the parties. They have affirmed in the petition itself that whatever is stated in the joint divorce petition is true to the best of their belief and information; it is also not in dispute that both the parties have deposed before the Court as PWs. 1 and 2 and in their deposition they have fully supported the contents of the consent divorce petition filed by them. From the aforementioned admitted facts, it is amply clear that both the parties voluntarily and unequivocally agree that the child Manya Muthamma shall be under the care and custody of the mother-respondent herein and that the mother- respondent herein will take care of the welfare and interest of the child till the child attains majority. It was also agreed between the parties unequivocally and voluntarily that the father of the child i.e., the appellant herein shall meet all the educational expenses of the child. On the basis of these admitted facts, the trial Court disposed of M.C. No. 18/2013 on 24.4.2013, while disposing of the M.C. No. 18/2013 it is specifically observed by the trial Court at paragraph 7 of the judgment that the parties have agreed that the custody of the child shall be with the mother of the child till the child attains the age of majority. Though it is observed specifically as mentioned supra by the Trial Court that the custody of the child should be with the mother of the child, unfortunately in the operative portion of the judgment, the trial Court has omitted this observation. It could be due to inadvertence. The very error has crept in while drawing the decree also.

Hence the respondent herein i.e., mother of the child approached this Court by filing MFA No. 5342/2013 before this Court seeking for custody of the child. In that regard, this Court having considered the material on record and having considered the fact that both the parties have agreed for the custody of the child in favour of the mother, directed the respondent herein to file application before the trial Court for review of its earlier order. The word ''review'' used by this Court in MFA was only for the purpose of providing an opportunity to the respondent-mother of the child to file application seeking modification of the operative portion of the order for getting the custody of the child. From the entire order of this Court in MFA, it is clear that this Court wanted the respondent to file application seeking custody of the child, in view of the agreement between the parties. The appellant cannot take hyper technical objection before this Court to the effect that the review petition ought to have been filed. Both the parties have approached the Trial Court seeking custody of the child as per law and as per the agreement between the parties. Even the appellant herein-father seeking custody of the child has not filed review petition.

Be that as it may, since both the parties agreed that the child should be in the custody of its mother i.e., the respondent herein, till the child attains majority, by the impugned orders the trial Court has rightly granted the custody of the child to the mother.

During the course of the arguments, it is brought to the notice of the Court by the appellant''s counsel the appellant is already re-married, whereas the respondent-mother of the child has remained unmarried and in view of the same, we find that the respondent will be in a better position to have the custody of the child. Moreover the respondent is an employee getting handsome salary and she would be in a position to maintain the child.

In such matters, the Court has to pass orders keeping in mind the welfare of the child. In the matter on hand, the parties have agreed that the custody of the child should be with the mother till she attains majority.

The impugned orders do not suffer from any defect and illegality. On the other hand, the trial Court by passing the impugned orders has merely upheld the agreement of both the parties that the custody of the child will be with the mother of the child in terms of joint divorce petition. Since both the parties agreed voluntarily that the child should be in the custody of the mother, there cannot be any scope for further arguments. The evidence of the parties is already recorded in M.C. No. 18/2013 wherein both the parties have agreed to abide by the terms mentioned in the joint divorce petition, relating to the custody of the child also. In view of the same, it is amply clear that the impugned orders are just and proper. Hence the appeals fail. The same stand dismissed.

The oral prayer for grant of special leave is rejected.