Vincy Cajetan Noronha & Ors. v. Steffi Genovevo Fernandes

Live-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. State[5], 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 Nagpal[6], 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

6 Civil Appeal No. 5899 of 2007 Judgment dtd 19.11.2008 12,000/- 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 Master 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 Kodali[7], 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 old 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 case 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 has relied upon the decision of the Madras High Court in R. Poonkothai Vs. K.S. Karupaiah[8] 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 Kansagra[9] 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. 1111 Yohan.

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 engaged by exchanging rings.

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 the 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 extremely 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 Ganguli11, 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 depression on him.

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 Baijal13, 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.

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 be 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 in either 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.”

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 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 grandparents, 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 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 Maharashtra15, 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 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, 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 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 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 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.

51. Although there were submissions and countersubmissions 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.

(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 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 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

(ix) All pending Interim Applications filed therein do not survive and are disposed of accordingly.

(x) There shall be no order as to costs.