AKASH Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The first petitioner is a minor aged nine years. The second petitioner is the first petitioner's maternal grand father aged 70 years. Both of them are residents of different localities in the city of Trivandrum, Kerala. They approached this Court under Art. 226 of the Constitution of India by filing this writ petition. The relief prayed is that this Court be pleased to declare that the Family Court, Secunderabad has no jurisdiction to pass any order concerning a minor child living in Trivendrum under sub-section (1) of Section 9 of Guardians and Wards Act, 1890 (hereafter called the Guardianship Act for brevity) and further declaration that a minor child has a fundamental right to stay with the person according to his wishes.

(2.) The first petitioner is the grand child of the second petitioner and son born out of wedlok between one Mr. K. V. Balasubramanyam and Dr. K. Radhika (daughter of the 2nd petitioner). Unfortunately, the mother of the first petitioner left her husband along with the first petitioner to her parents in Trivendrum on 10-5-1998. The husband filed O.P. No. 116 of 1998 before the Family Court, Secunderabad under Section 13(1)(a) of the Hindu Marriage Act read with Section 7 of the Family Courts Act, 1984 (the Act, for brevity). The husband also filed another OP being OP. No. 117 of 1998 claiming/praying the custody of the child, the first petitioner herein.

(3.) By an order dated 20-11-1999 in OP. No. 116 of 1998, the Family Court, Secunderabad passed an order dissolving the marriage between Mr. Balasubramanyam and Dr. K. Radhika. By another separate order in OP. No. 117 of 1998, the Family Court gave the custody of the first petitioner to the mother, Dr. K. Radhika, subject to condition that Dr. K. Radhika should send the minor child to Mr. Balasubramanyam during Onam, Christmas and summer vacations. A condition was also imposed that in case the mother fails to comply with the order of the Family Court, the father can apply for alteration of the order of custody of the minor child. Aggrieved by the order in OP. No. 117 of 1998, Mr. Balasubramaniam appears to have filed an appeal.