IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 8833/2023 (FC)

BETWEEN:

1. PARASURAM REDDY PALLE S/O KRISHNA REDDY PALLE AGED ABOUT 41 YEARS PEDDADAGADA (VILLAGE)

WANAPARTHY(DIST)

TELANGANA PIN-509104

2. REKHA SHIVAIAH D/O SHIVAIAH AGED ABOUT 34 YEARS VENKATESHWARA NILAYA PUTTANJANEYA TEMPLE ROAD HANUMANTHAPURA TUMKURU …APPELLANTS (BY SMT. T.S. RAJARAJESHWARI, ADVOCATE)

Digitally signed by PRABHU KUMARA NAIKA Location: High AND:

Court of Karnataka NIL …RESPONDENT THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT AGAINST THE JUDGMENT AND DECREE DATED 13.10.2023 PASSED IN OS.NO.31/2023 ON THE FILE OF THE C/C PRL. JUDGE, FAMILY COURT, TUMAKURU, DISMISSING THE SUIT OF THE PLAINTIFFS AS NOT MAINTANABLE AND ETC.

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and HON'BLE MR JUSTICE C.M. POONACHA

ORAL JUDGMENT

(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

Challenging the dismissal of their suit for declaration, the plaintiffs in O.S. No.31/2023 on the file of Principal Judge, Family Court, Tumakuru have preferred this appeal.

2. Case of the Appellants/Plaintiffs in brief is as follows:

First plaintiff and second plaintiff are Hindus. That the 1^st plaintiff was married to one Smt. Atma Vidya Kotlo on 26.04.2012 at Hyderabad and the said couple have two children by name Hrithika Reddy Palle and Tanaya Reddy aged about 7 and 9 years respectively. Smt. Atma Vidya died on 03.04.2022. Similarly, second plaintiff was married to one Sri. Ashwatha Reddy on 20.09.2007 at Dharmasthala and the said couple had daughter by name Kruthika Reddy B.A. born on 27.04.2012. Ashwatha Reddy died on 10.05.2016. After the death of their spouses, plaintiffs married on 11.06.2023 at Tumakuru as per the Hindu rights and rituals. After the marriage, Kruthika Reddy B.A. the daughter of 2^nd plaintiff is now in the care and custody of both the plaintiffs. Plaintiff No.1 is working in Qatar as Technical Architect in Qatar Airways. He intends to take the 2^nd plaintiff and her daughter Kruthika Reddy B.A. to Qatar. When he applied for Visa for Kruthika Reddy B.A., the immigration authority insisted that the plaintiff shall produce the legal custodian/guardianship documents issued by the Courts in India. Therefore, they are seeking declaration that they are the joint custodians of Kruthika Reddy B.A., the biological daughter of the 2^nd plaintiff.

3. The Trial Court by the impugned order held that the parties being Hindus, are governed by the Guardian and Wards Act, 1890, [For short ‘ Act, 1890’] and Hindu Minority and Guardianship Act, 1956, [For short ‘Act, 1956’]. If they want their appointment as joint guardians/custodians, they have to proceed under the said law and the suit filed by the plaintiffs in the present form is not maintainable and dismissed the suit.

4. Learned counsel for the appellants before this Court produced the copy of the e-mail said to be sent by the employer of the 1^st appellant to him and the judgment of the High Court of Punjab and Haryana at Chandigarh in case of Mohit Vs. Union of India and Others, [WP No.5862/2016( D.D 16.11.2016)]. She further submits that question of guardianship is independent of question of custody. To press that point, she relies on the following judgments:

1. Athar Hussain V. Syed Siraj Ahmed reported in (2010) 2 SCC 654.

2. Nil Ratan Kundu & Anr Vs. Abhijit Kundu reported in (2008) 9 SCC 413

5. The appellants had sought declaration in the form of suit presenting a plaint under Section 26 Order VII Rule 1 and 3 of Code of Civil Procedure, 1908, [For short ‘ CPC’]. Section 9 of CPC which deals with jurisdiction of the Civil Court reads as follows:

“9. Courts to try all civil suits unless barred The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepti