1992 (8) TMI 310 - HC - Indian Laws

Summary

Issues Involved:
1. Custody of the minor child.
2. Appointment of guardian.
3. Interim custody during pending proceedings.
4. Maintainability of appeal under Clause 15 of the Letters Patent.
5. Application of Section 10 of the Civil Procedure Code (CPC).

Detailed Analysis:

1. Custody of the Minor Child:
The main issue revolves around the custody of the minor child, Parthiv, born on 30th March 1991. The mother, Radhika, sought custody in the Family Court at Bombay, while the father, Konel, filed a petition in the Madras High Court for his appointment as the guardian and for interim custody. The Family Court at Bombay had already restrained Konel from removing the child from Radhika's custody. The High Court emphasized that the welfare of the child is paramount and concluded that the child, being just one year old, should remain with the mother. The court allowed the father visitation rights at the mother's residence in Bombay.

2. Appointment of Guardian:
Konel filed O.P. No. 694 of 1991 seeking to be appointed as the guardian of the minor. The court noted that the Hindu Minority and Guardianship Act defines a natural guardian and that the father is the natural guardian after the mother. However, since the child is below five years, the custody should ordinarily be with the mother. The court observed that the issue of guardianship and custody were substantially the same and should be adjudicated by the Family Court where the divorce proceedings were already pending.

3. Interim Custody During Pending Proceedings:
Konel also sought interim custody of the child during the pendency of the proceedings. The court denied this request, emphasizing that the welfare of the child necessitated that he remain with the mother. The court allowed Konel visitation rights but rejected his plea for interim custody, stating that the child's best interest required him to stay with the mother at such a young age.

4. Maintainability of Appeal Under Clause 15 of the Letters Patent:
Radhika appealed against the orders in Application No. 6404 of 1991 and Application No. 69 of 1992. The respondent's counsel questioned the maintainability of the appeal under Clause 15 of the Letters Patent, arguing that an order under Section 10 of the CPC is not a 'judgment' and thus not appealable. The court referred to the Supreme Court's judgment in Shah Babulal Khimji v. Jayaben, which clarified that an order staying or refusing to stay a suit under Section 10 of the CPC is appealable under Clause 15 of the Letters Patent. Consequently, the court held that the appeal was maintainable.

5. Application of Section 10 of the Civil Procedure Code (CPC):
Radhika sought a stay of the proceedings in the Madras High Court under Section 10 of the CPC, arguing that the issues in the Family Court at Bombay and the High Court were substantially the same. The court noted that Section 10 CPC aims to prevent parallel proceedings and held that the issues in both courts were indeed substantially the same. Therefore, the court stayed the proceedings in O.P. No. 694 of 1991 until the disposal of the suit in the Family Court at Bombay.

Conclusion:
The Madras High Court allowed the appeals, set aside the impugned orders, and stayed the proceedings in O.P. No. 694 of 1991 until the disposal of the suit in the Family Court at Bombay. The application for interim custody by Konel was dismissed, reaffirming that the child's welfare required him to remain with the mother. The court emphasized the paramount importance of the child's welfare and the necessity of avoiding parallel proceedings on the same issues.