Bombay High Court
Vincy Cajetan Noronha vs Steffi Genovevo Fernandes on 28 April, 2025
Author: R.I. Chagla
Bench: R.I. Chagla
2025:BHC-OS:7088
GP-1&13&2-2024-Jt.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
GUARDIANSHIP PETITION NO. 1 OF 2024
WITH
INTERIM APPLICATION (L) NO. 10387 OF 2024
IN
GUARDIANSHIP PETITION NO. 1 OF 2024
Mrs. Vincy Cajetan Noronha & Ors. ...Petitioners
Versus
Mrs. Steffi Genovevo Fernandes ...Respondent
WITH
GUARDIANSHIP PETITION NO. 13 OF 2024
WITH
INTERIM APPLICATION (L) NO. 21047 OF 2024
IN
GUARDIANSHIP PETITION NO. 13 OF 2024
Mrs. Vincy Cajetan Noronha & Ors. ...Petitioners
Versus
Mrs. Steffi Genovevo Fernandes ...Respondent
WITH
GUARDIANSHIP PETITION NO. 2 OF 2024
WITH
SHARAYU
PANDURANG
KHOT
INTERIM APPLICATION (L) NO. 31480 OF 2023
Digitally
signed by
IN
SHARAYU
PANDURANG
KHOT
Date:
2025.04.28
GUARDIANSHIP PETITION NO. 2 OF 2024
16:24:25
+0530
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Steffi Genoveno Fernandes ...Petitioner
Versus
Chidambaram P. Sankaram & Ors. ...Respondents
----------
Ms. Susan Abraham a/w Mr. Narayan Suvarna, Ms. Poojasri Ganesan
for the Petitioners in GP/1/2024 and GP/13/2024 and for
Respondent Nos. 2 to 4 in GP/2/2024.
Mr. Rajendra Sorankar i/by Ketan Dabke for the Petitioner in
GP/2/2024 and for the Respondent in GP/1/2024 and GP/13/2024.
Mr. Abhijit N. Desai for Respondent No. 1 in GP/2/2024.
----------
CORAM : R.I. CHAGLA J.
Reserved on : 23rd January 2025
Pronounced on : 28th April 2025
JUDGMENT :
1. By the Guardianship Petition No. 1 of 2024, the
Petitioners had initially sought the relief of permanent custody of the
minor Yohan Johnny Sankaram (“Master Yohan”) born on 3rd
December 2016. The Petitioner Nos. 1 and 2 are the grand-parents of
Master Yohan and Petitioner No. 3 is their daughter, i.e. aunt of
Master Yohan. Thereafter, by Guardianship Petition No. 13 of 2024 a
fresh Guardianship Petition had been filed pursuant to directions of
this Court. The Petitioners sought to be declared as Guardians of
Master Yohan. This had also been sought by way of amendment to
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Guardianship Petition No. 1 of 2013.
2. Guardianship Petition No. 2 of 2024 has been filed by the
Petitioner seeking her appointment and declaration as legal Guardian
of Master Yohan and to look after the rights and interest in the
properties mentioned in the Schedule of properties annexed at
Exh.AA to the Guardianship Petition and to manage, administer and
hold the same for and on behalf of Master Yohan till he turns major.
The Petitioner has also sought for appointment of the Petitioner as
competent person to pursue and/or initiate any proceedings as may
be required or advised with respect to insurance scheme, all service
benefit, PPF, Gratuity and other claims of whatsoever nature of
deceased Johnny Sanakarm, i.e. biological father of Master Yohan
with Respondent No.5 and/or with any other authorities or Court of
law and also to prosecute the claim and receive the same in
proceeding pending before the Motor Accident Tribunal Mumbai for
and on behalf of Master Yohan.
3. For the sake of convenience, the Petitioner Nos. 1 to 3 in
Guardianship Petition No. 1 of 2024 and Guardianship Petition No.
13 of 2024 are referred to as “the Petitioners” and the Petitioner in
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Guardianship Petition No. 2 of 2024, who is the Respondent in
Guardianship Petition No. 1 of 2024 and Guardianship Petition No.
13 of 2024 is referred to as “the Respondent”.
4. It is necessary to refer to the material facts as borne out
by the pleadings and evidence and which are as under :-
i. The biological parents of Master Yohan were married by
way of civil marriage registered on 25th April 2013 in
Dubai.
ii. The marriage of the biological parents of Master Yohan was
solemnized in Goa at the Petitioners’ Parish Church – St.
Alex Church, Calangute, Goa.
iii. Master Yohan was born in Dubai on 3rd December 2016.
iv. Upon birth of Master Yohan, the Petitioner No. 1 stayed in
Dubai for three months between 5th December 2016 and
1st March 2017 with her daughter, Iona – biological mother
of Master Yohan; Johnny – biological father of Master
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GP-1&13&2-2024-Jt.docYohan and Master Yohan for three months to take care of
Iona and her grandson so that Johnny could work. Baptism
of Master Yohan was arranged by his biological parents on
or around 20th January 2017 in Dubai in the presence of
Petitioner No. 1.
v. Master Yohan’s parents brought Master Yohan to celebrate
his 1st birthday at the house of the Petitioners in Goa on
3rd December 2017, Master Yohan’s 2nd birthday too was
celebrated on 3rd December 2018 with the Petitioners in
Goa.
vi. Master Yohan’s 3rd birthday was celebrated on 3rd
December 2019 with the Petitioners at their house in
Mumbai.
vii. The Petitioners claimed to have maintained close
relationship with the biological parents of Master Yohan
between the years 2017 to 2021 through regular telephonic
and video communications, as well as visits to each other
in Goa and Dubai till the outbreak of Covid 19 pandemic.
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viii. Iona’s health deteriorated during the second wave of the
Covid pandamic. She expired on 10th February 2021 in
Dubai and Johnny informed the Petitioners of her sudden
demise.
ix. Johnny agreed to bring his wife’s body to India to be buried
in Goa and the Petitioners as well as Johnny had to
manage despite lockdown restrictions.
x. The Petitioners arranged Iona’s funeral on 27th February
2021, when Johnny and Master Yohan reached Goa with
Iona’s body and which was arranged at the Petitioners’
parish church at St. Alex Church at Goa.
xi. Master Yohan stayed with the Petitioners in Goa between
27th February 2021 and 3rd June 2021 and during which
period, Johnny stayed with the Petitioners for a few weeks
and left for Mumbai in search of work. The Respondent
claims that Johnny left the Petitioners’ place along with
Master Yohan immediately within two months due to
embittered relationship with them.
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xii. The Respondent claims that in May 2021 since Johnny had
no place to stay, he had requested the Respondent who
happened to be the cousin sister of Iona to allow Johnny to
stay with her in her mother’s flat at Bhayander. Johnny
initially stayed with the Respondent at Bhayander and
thereafter took a flat on rent on 12th June 2021. The
Respondent has relied upon the leave and license
agreement where the Respondent is shown as a family
member under Clause (12).
xiii. It is the Petitioners’ case that Johnny brought Iona’s
insurance related paperwork to the Petitioners which was
signed by them. It is also their case that Johnny said that
he would keep Master Yohan with him in Mumbai and
admitted him in a school there. The Petitioners were ready
to keep Master Yohan with them, but agreed to the needs
of Johnny to have his son with him after the loss of his
wife.
xiv. On 27th March 2022 Johnny booked a flat admeasuring
670 sq.ft. (carpet) in an under construction project for
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that this was with a view to start a family with the
Respondent.
xv. The Petitioners have claimed that between June 2021 and
June 2023, they would often go to Mumbai to visit Johnny
and Master Yohan and that Johnny and Master Yohan also
would travel to Goa for family occasions or festivals.
xvi. The Respondent was granted a decree of divorce from her
husband by the Family Court on 26th April 2023. It is the
Respondent’s case that Johnny and the Petitioner decided
to marry each other on possession of the flat and in the
meantime, they had got engaged by exchanging rings.
xvii. Master Yohan travelled to Goa accompanied by the
Respondent’s mother (sister of Petitioner No. 1) on 6th
May 2023 and stayed with the Petitioners for two weeks. It
is the Respondent’s contention that this period was only
one week and thereafter, Master Yohan was at the
Respondent’s uncle’s place at Thivim.
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xviii. Johnny expired in a road accident on 2nd July 2023.
xix. The Respondent claims that she was solely involved in the
process of claiming Johnny’s body from police authority, as
Johnny had expired in a road accident. The Respondent
has further claimed that from the formalities at hospital, till
arranging funeral mass of Johnny were handled by her.
The Respondent has also claimed that the Petitioners were
nowhere in the picture. This is contrasted by the claim of
the Petitioners that on 3rd July 2023, the funeral mass of
Johnny was arranged by his friends at St. Joseph Church
cemetery in Mira Road.
xx. On 4th July 2023, the Petitioners offered to bring Master
Yohan with them to Goa. The Petitioners’ claim that when
they expressed their desire to do so, the Respondent agreed
stating that she was “nobody” to the child.
xxi. The Petitioners’ claim that on the next day i.e. 5th July
2023, the Respondent changed her mind and kept Master
Yohan away from the Petitioners.
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xxii. The Petitioners have further claimed that the Respondent
under the guise of taking Yohan to school and later taking
the Respondent’s mother to the hospital kept Yohan and
the mother at a friend’s residence at an undisclosed
location.
xxiii. The Respondent has claimed that on 6th July 2023 prior to
her overcoming the loss of Johnny, i.e. her fiance, the
Petitioners started abusing the Respondent. The
Respondent claims that the Petitioners threatened her to
handover Johnny and Master Yohan’s bank passbook,
jewellery and locker keys. The Petitioners also threatened
to take Master Yohan to Goa forcefully with them. The
Respondent claims that she was constrained to lodge police
complaint with Kashimira Police Station on 6th July 2023.
Subsequently, Kashimira Police station registered NC
complaint against the Petitioners. In contrast, the
Petitioners’ claim that on 6th July 2023, they had left
Johnny’s residence in the morning since they were told that
they could not meet Master Yohan nor were they able to
locate their grandson/nephew Master Yohan.
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xxiv. The Petitioners have claimed that they made numerous
calls and sent messages during the period 6th July 2023 to
29th July 2023 to the Respondent which went unanswered.
xxv. The Respondent claims that after the demise of Johnny, the
father of late Johnny executed Affidavit on 13th July 2023
giving his unconditional consent as well as no objection to
Respondent as guardian and for her keeping the custody of
child. The father of Johnny was also sent an e-mail to
Master Yohan’s school giving his no objection to appoint
the Respondent as guardian of Master Yohan. However, the
school had refused to do the same.
xxvi. The Petitioners claimed to have attended the one month
memorial service for Johnny held at St. Joseph Church,
Mira Road on 30th July 2023. However, during the service,
the Respondent did not allow Master Yohan to meet the
Petitioners.
xxvii. The Petitioners claim to have lodged a complaint with the
Kashimira Police Station for the custody of Master Yohan as
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his natural guardian on 1st August 2023.
xxviii. The Respondent claims that she along with Master Yohan
attended the Police Station, where she learnt that the
Petitioners had filed a complaint. However, the copy of
complaint was not provided.
xxix. The Petitioners claim that on 1st August 2023, the senior
Inspector of Police mediated discussions between the
Petitioners and the Respondent and directed the
Respondent to give custody of Master Yohan to the
Petitioners. They claim that the Respondent refused stating
that she had an Affidavit from Johnny’s father.
xxx. The Respondent claims to have sent Advocate’s notice
dated 7th August 2023 to Kashimira Police station asking
for a copy of complaint filed by the Petitioners as well as
the Petitioners’ statement recorded at Police Station. The
issue of jurisdiction of the police in deciding the custody
matter had been raised by the Respondent as the same was
required to be decided under the Guardians and Wards Act,
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1890. The Respondent claims that no response was
received from the Kashimira Police station. The
Respondent’s statement was recorded by the Police
regarding the custody of Master Yohan. The Respondent
has further stated that on that day, the Petitioners were
present in the Police Station, and wanted to talk to Master
Yohan, but Master Yohan refused to talk to them. The
Senior Inspector of Police, Kashimira Police Station told the
Petitioners to get an order from the Civil Court.
xxxi. The Petitioners claim to have contacted Child line on 24th
August 2023, who asked them to lodge a formal complaint
with the Child Welfare Committee (CWC) which they did
with the Petitioners’ friend Mr. Henrison Lobo.
xxxii. The Respondent claims that the Petitioners in connivance
with a local political person one Nitesh approached CWC
for custody of Master Yohan, at Ulhasnagar. The CWC did
not have any jurisdiction to entertain the complaint for
custody.
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xxxiii. The Respondent has claimed that the CWC not only
entertained the Petitioners’ complaint without jurisdiction,
but also started harassing and pressuring the Respondent
in connivance with local police and political person to
handover the custody of Master Yohan.
xxxiv. According to the Respondent, she received a call from PSI,
Ms. Archana Jadhav on 28th August 2023 asking the
Respondent to attend the CWC at Ulhasnagar on 29th
August 2023. In the summons issued by the Kashimira
Police Station on 28th August 2023, it has been mentioned
that the matter is with respect to the custody of Master
Yohan.
xxxv. There are different versions of events from 29th August
2023 till 5th September 2023, as claimed by the Petitioners
on the one hand and the Respondent on the other.
According to the Petitioners, the Respondent along with
Master Yohan were summoned by CWC for hearing on
29th August 2023. The Petitioners No. 1 and 2
accompanied by a social worker friend, attended the
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hearing along with the Respondent. However, Master
Yohan was not produced and the matter had been
adjourned to 4th September 2023, which was later
changed to 5th September 2023, as the Respondent was
not present on 4th September 2023.
xxxvi. Whereas the Respondent claims that on 29th August 2023,
she attended the office of CWC, where the member of the
CWC warned the Respondent that if the issue is not
“settled”, they will take the custody of the said child. The
Respondent claims to have thereafter, on 31st August
2023, addressed a letter through her Advocates to
Kashimira Police Station once again requesting copy of the
complaint of the Petitioners and it was recorded therein
that the powers to grant guardianship or custody are
assigned to the District Court or this Court under the
provisions of Guardians and Wards Act, 1890. Further, on
2nd September 2023 the Respondent claims to have sent
representation to CWC through her Advocate where the
point of jurisdiction and powers of CWC were disputed. On
4th September 2024, the Kashimira Police Station harassed
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and threatened the Respondent to handover custody of
Master Yohan by sending summons on the Respondent’s
whatsapp at 00:19 hours on that day and by asking
personal details like bank account, property details, IT
returns etc. at the behest of the Petitioners.
xxxvii. The Petitioners claim that on 5th September 2023, the
CWC summoned the Petitioners to the CWC office at
Ulhasnagar saying that the Respondent and Master Yohan
were at Kashimira Police Station. The Petitioners claimed
to have rushed to the CWC office to seek custody of Master
Yohan. Since the Respondent had no means of transport on
the Inspector’s request, and the Respondent’s consent, the
Petitioner No. 3’s social worker friend Nikesh drove the
Respondent, Master Yohan and PSI Archana Jadhav in his
car to the CWC office at Ulhasnagar. The Petitioners further
claim that when they reached the CWC office, the CWC,
Chairperson had already left the office, leaving instruction
for the PSI to take Master Yohan to Janani Ashish
Charitable Trust, a Children’s Home in Dombivali.
Thereafter, the Respondent with her friend, Master Yohan
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and PSI Archana Jadhav went to Dombivali Children’s
home in Nikesh’s car and left Master Yohan at home. The
Petitioners were not allowed to go with them so that they
returned to their home at Andheri.
xxxviii. The Respondent filed Criminal Writ Petition No. 3057 of
2023 before this court on 5th September 2023 challenging
the jurisdiction and power of CWC and Police Authorities.
xxxix. The Petitioners claim that the Respondent suppressed
information from the CWC and Kashimira Police Station
that they had filed Criminal Writ Petition, although both
having been arraigned as the Respondents. They claim that
in the event, notice had been given by the Respondent to
CWC and Kashimira Police Station, it could have averted
any action by CWC vis-à-vis Master Yohan. They have
claimed that this was with the malafide intentions to
snatch orders from this Court. This is disputed by the
Respondent as according to the Respondent, on 4th
September 2023 the CWC was intimated about filing of the
Writ Petition with request to defer the proceeding. This
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was by a letter dated 4th September 2023, addressed by
the Respondent and which was returned by the CWC. The
Respondent claims that she sent letter and copy of the
Criminal Writ Petition by hand delivery which was
accepted by the CWC at the same address on 6th
September 2023.
xl. The Respondent claims that on 5th September 2023, the
Police had came to the Respondent’s office at Mira Road
and told her that they need to take custody of Master
Yohan. The Respondent was forced to call Master Yohan to
the office from the Respondent’s home. The Respondent
and Master Yohan were forced into a police vehicle and
then taken to Kashimira Police Station. They were
presented before Senior Inspector of Police, who directed
to take the Respondent and Master Yohan to CWC at
Ullahasnagar. They were all placed in one “private car”
which the Respondent learnt belonged to one Nitesh who is
a political party worker, and who was doing liasoning for
custody of Master Yohan on behalf of the Petitioners. That
upon reaching CWC’s office at about 6:40 pm, the CWC’s
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Archana Jadhav to place Master Yohan in “Jankalyan
Balgriha” at Dombivali West, Thane.
xli. The Petitioners have claimed that on 7th September 2023
they received a call from the Chairperson of CWC to go to
Kashimira Police Station at Mira Road with regard to
mediation for custody of Master Yohan. Since the
Respondent had declined to come, the Petitioners were
asked to accompany the police personnel to bring Master
Yohan from the Children’s Home to the CWC Office at
Ulhasnagar. The Petitioners claim that Master Yohan had
willingly and happily accompanied the Petitioners. The
Petitioners further claim that when they along with PSI
Archana Jadhav reached the CWC office at Ulhasnagar,
they were accosted by a crowd of around 10 friends of the
Respondent, who created chaos and disruption totally
traumatising Master Yohan. The Respondent’s associates
did not allow any mediation to take place resulting in
Master Yohan being escorted back to the Children’s Home
by the police personnel in the vehicle, which had been
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xlii. The Respondent claims that from 5th September 2023 till
12th September 2023, Master Yohan was kept in children’s
home which affected his mental and physical health. There
were bite mark and rashes on Master Yohan’s body during
his illegal confinement in children’s home which has
affected his mental and physical health severely. The
Respondent claims that during the stay of Master Yohan in
the Children’s home, he was seen in the company/custody
of the Petitioners outside the Children’s / shelter home.
xliii. An order came to be passed on 11th November 2023 by
this Court in Writ Petition No. 3057 of 2023 by which it
was recorded that though the Respondent is not the
biological mother of Master Yohan, she had taken care of
him since 2021. Accordingly, the custody of Master Yohan
was restored to the Respondent.
xliv. Interim Application No. 3453 of 2023 was taken out by
Petitioners in Criminal Writ Petition No. 3057 of 2023 for
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November 2023 by this Court with direction to approach
the appropriate Court deciding the custody matters.
xlv. The Petitioners filed Civil Miscellaneous Application No.
301 of 2023 on 25th September 2023 at Thane District and
Sessions Court under Section 25 of the Guardians and
Wards Act, 1890 for custody of Master Yohan. The Petition
was thereafter, transferred to this Court and re-numbered
as present Guardianship Petition No. 1 of 2024.
xlvi. The Respondent filed Guardianship Petition No. 2 of 2024
on 20th October 2023 against the Petitioners.
xlvii. This Court by an order dated 29th April 2024 allowed the
Petitioners to file fresh Guardianship Petition under Section
7 of the Guardians and Wards Act, 1890. Accordingly,
Guardianship Petition No. 13 of 2024 was filed on 3rd May
2024.
xlviii. In Criminal Writ Petition No. 3057 of 2023 an Interim
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No. 2 to be impleaded as necessary party and which was
allowed by this Court and the Petitioner No. 2 herein was
joined as Respondent No. 4 therein.
5. Ms. Susan Abraham, the learned Counsel for the
Petitioners has submitted that it is well settled that only under
substantive proceedings under the Guardians and Wards Act, 1890
that the appropriate Court decides the issue of child custody and
guardianship. She has placed reliance upon the decision of the
Supreme Court in Somprabha Rana Vs. State of Madhya Pradesh1.
6. Ms. Abraham has submitted that the Respondent has
suppressed material fact of filing of the Criminal Writ Petition No.
3057 of 2023 from the Kashimira Police Station and CWC was not in
the best interest of Master Yohan and done with the sole motive of
snatching orders from this Court. This also goes to show the malafide
and unconsciousable conduct on the part of a caregiver of an
orphaned child, which in this case is Master Yohan i.e. after the death
of his parents and thus, the Respondent has wreaked havoc on
1 Criminal Appeal No. 3821 of 2023
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Master Yohan’s emotional and psychological well being by leaving
him at the children’s home in Dombivali. She has submitted that this
raises doubts about the Respondent’s suitability as a caregiver.
7. Ms. Abraham has relied upon the decision of the
Supreme Court in S.P. Chengalvaraya Naidu Vs. Jagannath2 in
support of her contention that the Respondent by suppressing the
material fact has sought to take unfair advantage and this deception
is in order to gain by another’s loss. She has submitted that in the
said decision, it has been held that fraud is an act of deliberate
deception with a design of securing something by taking unfair
advantage of another.
8. Ms. Abraham has further relied upon Gautam Kumar Das
Vs. NCT Of Delhi & Ors.3 at paragraphs 13 and 16, wherein it has
been held that merely because of the unfortunate circumstances
faced by the Appellant therein as a result of which, Respondent Nos.
5 and 6 were given the temporary custody of the minor child and
only because they looked after her for few years, the same cannot be
2 1994 SCC (1)1
3 SLP Criminal 5171 of 2024 judgment dated 20.08.2024
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a ground to deny the custody of the minor child to the appellant,
who is her only natural guardian. Further, the minor child being of a
tender age, she will get adapted to the natural family very well in a
short period. She has submitted that this decision is applicable in the
present case, as due to the circumstances which arose from Master
Yohan’s parents’ demise, the Respondent looked after Master Yohan
for a few years and merely because of this fact, the Petitioners cannot
be denied the custody of Master Yohan as they are his natural
guardians.
9. Ms. Abraham has also placed reliance upon the decision
in Tejaswini Gaud & Ors. Vs. Shekhar Jagdish Prasad Tewari & Ors.,
paragraph 34, wherein it is held that merely because of Appellants
therein being the relatives took care of the child, they cannot retain
the custody of the Child.
10. Ms. Abraham has referred to Section 17 of the
Guardians and Wards Act, 1890 and in particular, Section 17(2),
which provides that in considering what will be for the welfare of the
minor, the Court shall have regard to the age, sex and religion of the
minor, the character and capacity of the proposed guardian and his
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nearness of kin to the minor, the wishes if any of the deceased parent
and any existing or previous relations of the proposed guardian with
the minor or his property. She has submitted that the Respondent’s
behavioural control over Master Yohan to the exclusion of his entire
family which raised Master Yohan from the time of his birth till the
death of his father is not only unhealthy but also can cause
permanent damage to the tender and impressionable psyche of the 7-
8 year old Master Yohan. She has submitted that the Respondent
having been previously married while claiming to be in a relationship
with the father of Master Yohan will not be conductive for the
upbringing and welfare of Master Yohan. She has submitted that
there was never any such intention of Master Yohan’s father to marry
the Respondent and/or this was neither made public nor put in
writing. The relationship of the Respondent with Master Yohan’s
father is an adulterous relationship and not a “Live-in Relationship”
since she was at that time a married woman. The divorce obtained
from her legally wedded husband was only on 26th April 2023.
11. Ms. Abraham has relied upon the judgment of the
Supreme Court in Indra Sarma Vs. K.V. Sarma4, which held that a
4 AIR 2014 SC 309
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GP-1&13&2-2024-Jt.docLive-in Relationship with a married person is not a relationship in
nature of marriage. She has further relied upon the decision of the
Supreme Court in U. Suvetha Vs. State5, where the Supreme Court
held that a girl friend or even a concubine in an etymological sense
would be a “relative”. Such status must be conferred either by blood
or marriage or adoption. If no marriage has taken place, then the
question of one being relative of another would not arise.
12. Ms. Abraham has further placed reliance upon
Gaurav Nagpal Vs. Sumedha Nagpal6, wherein it is held that the
moral and ethical welfare of the child must also weigh with the Court
as well as its physical well being.
13. Ms. Abraham has submitted that the Respondent’s
admitted income in her Guardianship Petition No. 2 of 2024 is INR
34,491/-, which is insufficient to cover all the necessities for Master
Yohan, the Respondent herself, and her ailing mother who is a cancer
patient/survivor and is affected by polio. She has submitted that with
a monthly rent of INR 22,500/-, the Respondent is left with only INR
5 (2009) 6 SCC 757
6 Civil Appeal No. 5899 of 2007 Judgment dtd 19.11.200826/51
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GP-1&13&2-2024-Jt.doc12,000/- to cover all other expenses, including food, household costs,
mother’s medication, and school fees. She does not own a house in
her or her mother’s name.
14. Ms. Abraham has submitted that the Petitioners
have sufficient means to provide for Master Yohan’s needs without
access to any of his inheritance. The Petitioner Nos. 1 and 2 own two
houses (in Goa & Mumbai) and have accumulated substantial
savings, since they are both retired from well paying and permanent
jobs. Similarly, Petitioner No. 3, is financially stable, since she runs a
company and her husband too is in a well-placed position in the
hospitality industry and is earning a good income. They too, own a
house in Goa. She has submitted that the Petitioners therefore are
well endowed to provide for Master Yohan, without touching the
funds in his name which can then be saved for his exclusive use when
he turns major.
15. Ms. Abraham has submitted that the Respondent
does not have the capacity to bring up Master Yohan in a wholesome
environment, whereas the Petitioners are a well-knit family with one
granddaughter / daughter Rain, who will be an elder sister for
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GP-1&13&2-2024-Jt.docMaster Yohan. The Petitioners have a large extended family (in Goa
and Mumbai). Master Yohan will be loved and cared for by the
Petitioners and their extended family.
16. Ms. Abraham has submitted that the Petitioners
have had a natural, homely and wholesome relationship with Master
Yohan from the time of his birth till the demise of his father, the late
Johnny. She has placed reliance upon the decision of the Supreme
Court in Lahari Sakhamuri Vs. Sobhan Kodali7, wherein the Supreme
Court has considered the crucial factors which are to be kept in mind
by the Courts for gauging the welfare of the children equally for the
parent’s can be inter alia, delineated, such as (1) maturity and
judgment; (2) mental stability; (3) ability to provide access to
schools; (4) moral character; (5) ability to provide continuing
involvement in the community; (6) financial sufficiency and last but
not the least the factors involving relationship with the child, as
opposed to characteristics of the parent as an individual.
17. Ms. Abraham has referred to Section 17(3) of the
Guardians and Wards Act, 1890, which provides that “If the minor is
7 (2019) 7 SCC
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GP-1&13&2-2024-Jt.docold enough to form an intelligent preference, the Court may consider
that preference.”. She has submitted that Master Yohan, between
ages of 7 & 8 is not an age to make ” an intelligent preference” about
who he wishes to be with as his natural guardian. She has submitted
that Master Yohan has lost both his parents in a matter of two years.
Further, Master Yohan was in close contact with the Petitioners till
May 2023, to be suddenly alienated from them from July onwards,
which can be the most traumatising experience for any child of that
age. She has submitted that Master Yohan being a child of such
tender years can be easily tutored to say as per the diktat of the
person who has custody, as so frequently witnessed between warring
biological parents in child custody battles.
18. Ms. Abraham has referred to the Court appointed
Counsellor’s Report dated 20th September 2024. The said
Counsellor’s Report clearly points to the extremely vulnerable and
indecisive behaviour of the child vis-à-vis his biological family and an
unhealthy attachment to the caregiver. She has submitted that there
are a catena of judgments, which have held that it is necessary for
the child to be given overnight custody, vacations and shared custody
between contesting parents and which may be applied in the present
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GP-1&13&2-2024-Jt.doccase between the Petitioners and the Respondent who has interim
custody of the child.
19. Ms. Abraham has submitted that the said
Counsellor’s Report highlights the remarkable bonds Master Yohan
displayed in just two sittings with the Counsellor with both the
Respondent as Custodian and Caretaker on the one hand, and with
his biological grand-parents, aunt Ingrid, and cousin Rain on the
other and their involvement and requirement in Master Yohan’s
upbringing and emotional welfare.
20. Ms. Abraham has submitted that this Court in
deciding Guardianship of properties of Iona and Johnny, the deceased
parents of Master Yohan, under Section 7 of the Guardians and
Wards Act, 1890, requires to consider that only a Legal Heir can
claim the funds arising out of employment of any deceased person. In
the present case, there is only Master Yohan who is the sole legal heir
to the properties of his late parents. She has submitted that this Court
ought to keep interim custody of the said properties, till all the
contentions and claims of the parties are finally heard and decided or
till the minor child attains age of majority, whichever is earlier. She
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GP-1&13&2-2024-Jt.dochas relied upon the decision of the Madras High Court in R.
Poonkothai Vs. K.S. Karupaiah8 in this context.
21. Ms. Abraham has submitted that this Court be
pleased to decide interim guardianship under Section 12 of the
Guardians and Wards Act, 1890 granting Petitioners interim
guardianship and custody of Master Yohan. This will not only serve,
but will enhance Yohan’s welfare by ensuring a continuity of his
bonds with his biological family, i.e. the Petitioners, by the present
caregiver who holds his interim custody, i.e. the Respondent. She has
placed reliance on the decision of the Supreme Court in Smriti
Madan Kansagra Vs. Perry Kansagra9 and Nil Ratan Kundu and Anr.
Vs. Abhijit Kundu10.
22. Ms. Abraham has submitted that in view of this
Court having finally heard the Guardianship Petition, the relief
sought for in the Guardianship Petition No. 1 of 2024 and
Guardianship Petition No. 13 of 2024 filed by the Petitioners be made
absolute and the Petitioners be declared as Guardians of Master
8 2012 2 SCC OnLine Mad 4599
9 CA 3559 of 2020: SC
10 (2008) 11 S.C.R. 111131/51
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GP-1&13&2-2024-Jt.docYohan.
23. Mr. Sorankar, the learned Counsel for the
Respondent in Guardianship Petition No. 1 of 2024 and Guardianship
Petition No. 13 of 2024 and the Petitioner in Guardianship Petition
No. 2 of 2024 has submitted that Master Yohan has been looked after
by the Petitioner since May 2021 till today. There is a close bonding
between the Petitioner and Master Yohan. He has submitted that
Master Yohan was in the Respondent’s care from the age of 4 years
and that there is no material to show that the Petitioners have ever
participated in the upbringing and care of master Yohan. He had
submitted that the Petitioners were present only on the first birthday
of Master Yohan, as the same was in Goa. However, on subsequent
birthdays they were never present as alleged.
24. Mr. Sorankar has submitted that Master Yohan’s
father Johnny and the Respondent having been living together since
May 2021. Johnny had upon the Respondent having been granted
the Decree of Divorce from her erstwhile husband, decided to marry
the Respondent on possession of the flat, which Johnny had booked
in an under construction project and in the meantime, they had got
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25. Mr. Sorankar has submitted that Master Yohan
though in the custody of the Respondent, had been snatched away
from the Respondent due to the complaints of the Petitioners i.e. the
police complaint and the complaint made to the CWC. He has
submitted that Master Yohan was made to suffer in a children’s home
from 5th September 2023 till 12th September 2023, which affected
his mental and physical health. The Petitioners, if they were so
concerned about the welfare of Master Yohan, would have not acted
in such a manner which would cause immense injury to child’s mind
and body. He has placed reliance on the Criminal Writ Petition No.
3057 of 2023 as well as order dated 11th September 2023 passed
therein by which this Court had restored the custody of Master Yohan
to the Respondent / Petitioner therein. He has submitted that this
order has not been challenged by the Petitioners till date and thus,
has attained finality.
26. Mr. Sorankar has further submitted that the
Respondent has been taking care of Master Yohan’s welfare including
his educational fees, upbringing and all his basic needs. Further, after
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GP-1&13&2-2024-Jt.docthe demise of Johnny, his father, Chidambaram P. Sankaram
executed an Affidavit at Kerala authorising the Respondent to take
care of Master Yohan by giving his no objection. Master Yohan has
developed a good bonding with the Respondent and the Respondent
undertakes to take all responsibility and care of Master Yohan even in
future.
27. Mr. Sorankar has submitted that Master Yohan is
entitled to the properties i.e. movable, immovable, bank account
balance, fixed deposits, flat (under construction) left behind by his
deceased father Johnny.
28. Mr. Sorankar has submitted that the Respondent’s
income is adequate enough to fulfill all the necessities of Master
Yohan, the Respondent and her mother. He has submitted that the
Petitioners have falsely submitted that Respondent’s mother is
suffering from Polio. The said disease has already been cured. With
respect to breast cancer of the Respondent’s mother, she has
recovered in the year 2017.
29. Mr. Sorankar has submitted that Master Yohan is
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GP-1&13&2-2024-Jt.docextremely attached to the Respondent, as has been noticed by this
Court during the interactions with Master Yohan. Further, the
Counsellor appointed by this Court, in her Report has opined that
Master Yohan can stay with the Respondent and in return, the
Respondent should bridge the gap and allow Master Yohan to be
with his grand-parents, his aunt Ingrid and her family including
daughter Rain by visiting each other’s house, respectively, as well as
through video, audio calls, etc. He has submitted that it is imperative
that Master Yohan stays with the Respondent as Master Yohan
addresses the Respondent as his mother.
30. Mr. Sorankar has relied upon the decision of the
Supreme Court in Mausami Moitra Ganguli Vs. Jayant Ganguli 11,
wherein the Supreme Court has considered that the welfare of the
child is of paramount consideration. The Court is required to consider
whether one of the parents i.e. the father has sufficient time or
resources to look after the welfare of the child and since the
dislocation of the minor from Allahabad, where he has grown up
with his father in sufficiently good surroundings, would not only
impede his schooling, it may also cause emotional strain and
11 (2008) 7 SCC 673
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31. Mr. Sorankar has further relied upon the decision
of the Supreme Court in Gaytri Bajaj Vs. Jiten Bhalla12, wherein the
Supreme Court has considered the issue of custody of minor children
under either the provisions of the Guardians and Wards Act, 1890 or
the Hindu Minority and Guardianship Act, 1956 is required to be
made by the Court treating the interest and welfare of the minor of
paramount importance. An attempt was made by the Court, even by
means of a personal interaction with the children, to bring the issue
with regard to custody and visitation rights to a satisfactory
conclusion.
32. Mr. Sorankar has further relied upon the decision
of the Supreme Court in Anjali Kapoor (Smt) Vs. Rajiv Baijal 13,
wherein the Supreme Court has in deciding the question of
guardianship of the minor, held that the welfare of the minor child is
the paramount consideration and such a question cannot be decided
merely based upon the rights of the parties under the law.
12 (2012) 12 SCC 471
13 (2009) 7 SCC 32236/51
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33. Mr. Sorankar has also relied upon the decision of
the Supreme Court in R.V. Srinath Prasad Vs. Nandmuri Jayakrishna
& Ors.14, wherein the Supreme Court has held that the custody of the
minor children is a sensitive matter. It is also a matter involving
sentimental attachment. Neither affluence nor capacity to provide
comfortable living should cloud the consideration by the Court. A
balance has to be struck between the attachment and sentiments of
the parties towards the minor children and the welfare of the minors
which is of paramount importance.
34. Mr. Sorankar has accordingly, submitted that the
Respondent is best suited to be appointed as Guardian of Master
Yohan. Accordingly, the Guardianship Petition No. 1 of 2024 and
Guardianship Petition No. 13 of 2024 is required to be dismissed and
the Guardianship Petition No. 2 of 2023 filed by the Respondent be
made absolute.
35. Having considered the submissions, this Court is
exercising powers under Section 7 of the Guardians and Wards Act,
1890 in determining whether the Petitioners or the Respondent is to
14 (2001) 4 SCC 71
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GP-1&13&2-2024-Jt.docbe appointed as Guardian of Master Yohan. In doing so the Court is
exercising its parens patriae jurisdiction. The Supreme Court in
Gaurav Nagpal Vs. Sumedha Nagpal (supra), whilst considering the
provisions of the Hindu Minority Act, 1956 held that the word
“welfare” used in Section 13 of the Act has to be construed literally
and must be taken in its widest sense. The moral and ethical welfare
of the child must also weigh with the Court as well as his / her
physical well being.
36. In Mausami Moitra Ganguli Vs. Jayant Ganguli,
the Supreme Court considered the provisions of the Guardians and
Wards Act, 1890 and in particular Section 17 thereof which relates to
the custody of the minor child. The Supreme Court in paragraphs 19
and 20 held as under:-
“19. The principles of law in relation to the custody of a
minor child are well settled. It is trite that while
determining the question as to which parent the care
and control of a child should be committed, the first
and the paramount consideration is the welfare and
interest of the child and not the rights of the parents
under a statute. Indubitably, the provisions of law
pertaining to the custody of a child contained in38/51
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GP-1&13&2-2024-Jt.doceither the Guardianship and Wards Act, 1890
(Section 17) or the Hindu Minority and
Guardianship Act, 1956 (Section 13) also hold out
the welfare of the child as a predominant
consideration. In fact, no statute, on the subject, can
ignore, eschew or obliterate the vital factor of the
welfare of the minor.
20. The question of welfare of the minor child has again
to be considered in the background of the relevant
facts and circumstances. Each case has to be decided
on its own facts and other decided cases can hardly
serve as binding precedents insofar as the factual
aspects of the case are concerned. It is no doubt, true
that father is presumed by the statutes to be better
suited to look after the welfare of the child, being
normally the working member and head of the
family, yet in each case the court has to see primarily
to the welfare of the child in determining the
question of his or her custody. Better financial
resources of either of the parents or their love for the
child may be one of the relevant considerations but
cannot be the sole determining factor for the custody
of the child. It is here that a heavy duty is cast on the
court to exercise its judicial discretion judiciously in
the background of all the relevant facts and
circumstances, bearing in mind the welfare of the
child as the paramount consideration.”
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37. In the above decisions the principles governing
Guardianship as well as custody of a minor child has been considered
and the Court in exercising its parens patriae jurisdiction shall take
into consideration the welfare of the minor child, which is the
paramount consideration.
38. In the present case, Master Yohan lost both his
parents at a tender age, in a matter of two years apart, i.e. loosing his
mother in the year 2021 and his father in the year 2023. Master
Yohan has been looked after by the Respondent – Mrs. Steffi
Genoveno Fernandes since May 2021 i.e. few months after his
mother expired. This is when his father Johnny started residing with
the Respondent and her mother in Mumbai. Johnny and the
Respondent were to marry each other on possession of a flat which
Johnny had booked and in the meantime, they had got engaged by
exchanging rings.
39. The Petitioners are residents of Goa. The
Petitioners were initially very much a part of Master Yohan’s life i.e.
when Master Yohan and his parents used to spend holidays in Goa
with them. However, the Petitioners interactions with Master Yohan
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were for limited periods, considering that Master Yohan and his
parents were living in Dubai where Master Yohan was born. After the
demise of Master Yohan’s mother – Iona, Master Yohan and his father
Johnny returned to India and stayed with Iona’s parents, i.e. the
Petitioner Nos. 1 and 2 in Goa for a few months. Thereafter, Master
Yohan and his father Johnny, as aforementioned resided with the
Respondent in Mumbai.
40. Master Yohan has grown to be extremely attached
to the Respondent and there is a tremendous bonding between them.
I had an occasion to interact with Master Yohan and during the
interaction, I found that Master Yohan referred to the Respondent as
his mother and was reluctant to acknowledge or meet his grand-
parents, i.e. Petitioner Nos. 1 and 2 and his aunt Petitioner No. 3.
This is when I advised Master Yohan that for grand-parents, their
grand child is precious and considered an integral part of their life.
Further, Master Yohan’s aunt i.e. Petitioner No. 3 also has a daughter
Rain and for Master Yohan, it would be a healthy environment to
interact with Rain and her mother together with the grand-parents.
41. The Petitioners on the one hand has contended
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that the Respondent has a control over Master Yohan, by having
taken custody of Master Yohan from them and that Master Yohan has
been alienated from the Petitioners. Whereas the Respondent on the
other hand has contended that the Petitioners have not made an
attempt to be a part of Master Yohan’s life and/or take care of his
basic needs.
42. The Petitioners have also alleged that the
Respondent has tutored Master Yohan to keep his distance from his
grand-parents, i.e. Petitioner Nos. 1 and 2 and his aunt Petitioner
No.3. The Petitioners have placed reliance upon the decision of the
Supreme Court in Indra Sarma Vs. K.V. Sarma (supra) and of this
Court in Kshitija Vijay Kakade Vs. The State of Maharashtra 15,
wherein it is held that it is necessary for the child to be given
overnight custody, vacations and shared custody between contesting
parents. These decisions are in matrimonial cases, where the dispute
is between the husband and wife as to custody of the minor child. In
the present case, the situation is different. The Petitioners are
residents of Goa, which is an unfamiliar surrounding for Master
Yohan as he has since the age of four years till today lived in
15 Criminal Writ Petition No.505 of 2020 Order dtd.04.09.2024
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Mumbai. The Petitioners have been visiting Mumbai, as this Court
has granted access of Master Yohan to the Petitioners. However, this
Court is of the view that it would not be in Master Yohan’s interest
that he is uprooted from his familiar surroundings in Mumbai and
made to live in Goa with the Petitioners.
43. The Petitioners have further contended that the
Respondent’s income is insufficient to take care of Master Yohan as
admittedly she is earning INR. 34,491/- as stated by her in her
Guardianship Petition. The Respondent has to cover not only Master
Yohan’s expenses, but that also of her ailing mother and herself. They
have contended that there is a monthly rent of INR 22,500/- which
the Respondent is required to pay and that leaves her with only INR
12,000/- to cover all other expenses, including food, household costs,
Respondent’s mother’s medication and school fees.
44. The Petitioners have placed reliance upon their
sufficient means to provide for Master Yohan’s needs without access
to any of his funds. The fact that the Petitioner Nos. 1 and 2 own two
houses in Goa and Mumbai and have substantial savings since they
have both retired from well paying permanent jobs. Similarly,
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Petitioner No.3 is financially stable since she runs a company and her
husband too is in a well-placed position in the hospitality industry
and is earning a good income. They too own a house in Goa.
45. Although the aforementioned factors are relevant,
the paramount consideration is the welfare of Master Yohan. It is
well settled that custody of a minor child is a sensitive issue and it is
a matter involving sentimental attachment. A balance has to be
struck between the attachment and sentiments of the parties towards
the minor child and the welfare of the minors which is of paramount
importance. Further, it has been held by the Supreme Court in R.V.
Srinath Prasad (supra), which has been relied on behalf of the
Respondent that in a sensitive matter involving custody of the minor
child, there is no single factor that can be decisive. Neither affluence
nor capacity to provide comfortable living should cloud the
consideration by the Court. It is a settled principle that custody
orders by their nature can never be final, however, before a change is
made it must be proved to be in the paramount interest of the
children.
46. It has been held by the Supreme Court in Gaytri
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Bajaj Vs. Jiten Bhalla (supra) which has been relied upon by the
Respondent that the Court is required by means of a personal
interaction with the children, to bring the issue with regard to
custody and visitation rights to a satisfactory conclusion. Having
interacted with Master Yohan, I had occasion to consider that he has
a great bonding with the Respondent and refers to her as his mother.
There is no dispute that the Respondent has been taking care of the
basic needs of Master Yohan including his education since year 2021,
initially with Johnny’s assistance and thereafter, after his demise in
2023 on her own. Thus, in my view, the fact that the Respondent
does not have the affluence which the Petitioners have, is not an
issue that can cloud the consideration of this Court.
47. The Petitioners have relied upon Section 17(3) of
the Guardians and Wards Act, 1890 which provides that if the minor
is old enough to form an intelligent preference, the Court may
consider that preference. They have submitted that Master Yohan is
between the age 7 – 8 and not of age to make “an intelligent
preference” about whom he wishes to be with as his Guardian. They
have accordingly, submitted that the preference expressed by Master
Yohan cannot be taken into consideration as this has been tutored by
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the Respondent. They have relied upon the Counsellor’s Report to
submit that it clearly points to the extremely vulnerable and
indecisive behaviour of the child vis-à-vis his biological family and an
unhealthy attachment to the caregiver, i.e. the Respondent.
48. In my considered view though Master Yohan may
not be old enough to form an intelligent preference, the interaction
with Master Yohan and the Respondent is certainly a factor which
this Court is required to take into consideration and from which it is
found that there is a great bonding between Master Yohan and the
Respondent.
49. The Court appointed Counsellor in the Report has
learnt from the sessions that the Respondent has been taking care of
Master Yohan since 2021 and that he is extremely attached to her
and refused to befriend anybody around him, including the
Counsellor as well as the Petitioners initially. The Counsellor has
recommended that Master Yohan can stay with the Respondent and
in return the Respondent is required to bridge the gap and allow
Master Yohan to stay with his grand-parents, his aunt Ingrid and his
family by visiting them at each other’s house, including through video
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calls, audio calls, etc. Further, the Counsellor has highly
recommended Master Yohan to continue counselling / therapy from
a Court-psychologist / Counsellor to address his everyday conflicts
and behavioural challenges. The Counsellor has also recommended
that the Respondent along with Master Yohan’s grand-parents to be a
part of family counselling / therapy with Master Yohan too, with
time.
50. Considering the Counsellor’s Report as well as the
aforementioned facts which had been brought on record by way of
Affidavit of Evidence filed by the Petitioners and the Respondent, it
appears that Master Yohan would be best suited with the Respondent
and for which the Respondent is required to be declared as Guardian
of Master Yohan, conditional upon the Respondent providing access
of Master Yohan to the Petitioners either at the residence of the
Respondent or at the Petitioners’ residence in Mumbai. Further, the
Respondent is also required to allow Master Yohan to spend at least
one vacation in the year with the Petitioners at their residence in Goa
and this may be either with the Respondent or a family friend of the
Respondent accompanying Master Yohan with whom Master Yohan
is comfortable.
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51. Although there were submissions and counter-
submissions by the Petitioners and Respondent made with regard to
the events which took place at the Kashimira Police Station; CWC at
Ulhasnagar and the Children’s Home which has been referred to
above, this Court is not going into this dispute, as it is the subject
matter of the Criminal Writ Petition which has been filed by the
Respondent and which will be adjudicated separately by the Bench
taking up that matter.
52. Hence, the following order is passed.:-
(i) Steffi Genovevo Fernandes, Petitioner in
Guardianship Petition No. 2 of 2024 is declared as
Guardian of Master Yohan Johnny Sankaram and to
look after Master Yohan’s rights and interest in the
properties mentioned in Schedule of properties
annexed at Exh.AA and to manage, administer and
hold the same for and on behalf of Master Yohan till
he turns major.
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(ii) The Petitioner is also appointed as Competent
Person to pursue and/or initiate any proceedings as
may be required or advised with respect to
insurance scheme, all service benefit, PPF, Gratuity
and other claims of whatsoever nature of deceased
Johnny Sanakarm, i.e. biological father of Master
Yohan with Respondent No.5 and/or with any other
authorities or Court of law and also to prosecute the
claim and receive the same in proceeding pending
before the Motor Accident Tribunal, Mumbai for and
on behalf of Master Yohan.
(iii) The order in (i) and (ii) above passed is subject to
the Petitioner allowing access of Master Yohan to
Vincy Cajetan Noronha, Cajetan Gabriel Noronha
and Ingrid Godwin Mathias – Respondent Nos. 2 to
4 in Guardianship Petition No. 2 of 2024 at her
residence and/or their residence in Mumbai
including by allowing the Respondent Nos. 2 to 4 to
make frequent visits and also permit them to take
Master Yohan for outings, subject to their returning
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him to the residence of the Petitioner on the same
day in the evening.
(iv) Further, the Petitioner in Guardianship Petition No.
2 of 2024 shall allow the Respondent Nos. 2 to 4 to
spend at least one vacation in the year of the
Respondent Nos. 2 to 4’s choice with Master Yohan
at their home in Goa and during which the
Petitioner and/or a close family friend of the
Petitioner to whom Master Yohan is comfortable
with shall accompany him to the Respondent Nos. 2
to 4’s home in Goa.
(v) The Declaration of the Petitioner in Guardianship
Petition No. 2 of 2024 as Guardian shall be subject
to Master Yohan continuing counselling for a period
of six months and during which sessions the
Petitioner and Respondent Nos. 2 to 4 shall remain
present. This is as per the advise of the Court
appointed Counsellor Dr. Vishakha N. Punjani. The
Counsellor Dr. Vishakha N. Punjani is requested to
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do the counselling.
(vi) In the event, Dr. Vishakha N. Punjani is unable to do
the counselling, liberty is granted to the parties to
apply for appointment of an independent
Counsellor, who is agreeable to do the counselling
and which this Court finds suitable to be appointed
as Counsellor.
(vii) Guardianship Petition No. 2 of 2024 is accordingly,
allowed with the above directions and disposed of.
(viii) In view of this order, Guardianship Petition No. 1 of
2024 and Guardianship Petition No. 13 of 2024 is
dismissed.
(ix) All pending Interim Applications filed therein do not
survive and are disposed of accordingly.
(x) There shall be no order as to costs.
[R.I. CHAGLA J.]
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