Karnataka High Court
Smt Rajashree W/O Vinay Haveri vs Sri Vinay S/O Shivappa Haveri on 19 December, 2024
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NC: 2024:KHC-D:18500
WP No. 107626 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 107626 OF 2024 (GM-FC)
BETWEEN:
SMT RAJASHREE,
W/O VINAY HAVERI,
AGE. 37 YEARS, OCC. TEACHER,
R/O .C/O. MURIGEPPA Y ALADAKATTI,
NEAR BANASHANKARI TEMPLE,
BANASHANKARINAGARA ,
DHARWAD-580009.
...PETITIONER
(BY SRI. ARAVIND D KULKARNI, ADVOCATE)
AND:
SRI VINAY,
Digitally signed
by V N BADIGER
VN
Location: HIGH
COURT OF
S/O SHIVAPPA HAVERI,
KARNATAKA
BADIGER DHARWAD AGE. 37 YEARS, OCC. PRIVATE WORK,
BENCH
R/O . LAXMINAGAR,
Date: 2024.12.20
15:39:42 +0530
7TH CROSS, VIDYAGIRI,
DHARWAD-580004.
...RESPONDENT
(BY SRI. GANGADHAR S. HOSAKERI, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF
CERTIORARI OR ANY OTHER WRIT OR ORDER, QUASHING THE
ORDER DATED 03/07/2024 PASSED IN M C NO.254/2021
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NC: 2024:KHC-D:18500
WP No. 107626 of 2024
PASSED BY THE PRL. JUDGE, FAMILY COURT, DHARWAD VIDE
ANNEXURE-F AND CONSEQUENTLY ALLOW THE SAID
INTERLOCUTORY APPLICATION.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the order dated 03.07.2024 passed on an application under Section 152 of the Code of Civil Procedure, 1908, in M.C. No.254/2021 by the Principal Judge, Family Court, Dharwad, the petitioner-wife is before this Court.
2. The facts of the case are that the marriage between the parties is dissolved by way of a mutual consent divorce. It is stated that, they have filed a petition seeking divorce by mutual consent, it was agreed that the child is in the custody of the wife and she has undertaken full responsibility for the child care and maintenance. In the judgment, the same was not reflected. It is stated that when she submitted an application for issuance of passport, the Passport Authorities had raised an issue regarding the custody of the child. Therefore, due to lack of documents, -3- NC: 2024:KHC-D:18500 WP No. 107626 of 2024 the Passport Authorities declined to approve the passport in the child's name. Thereafter, on going through the judgment, she came to know that the aspect of the custody of the child is not mentioned in the judgment as such she came up before the Court by filing the application under Section 152 of CPC.
3. The Trial Court had passed the impugned order considering the scope of Section 152 and observed that Section 152 speaks about the correction of clerical or arithmetical error in the judgment passed by the Court, whereas the application of the petitioner discloses that she wanted that one para mentioned in the petition to be added in the judgment, and the said proposed addition in the judgment do not come under the purview of Section 152 of CPC because there was no typographical error committed by the Court, and accordingly dismissed the application filed by the wife. Aggrieved thereby, the present writ petition is filed.
4. On behalf of the husband, learned counsel, Sri Gangadhar S.Hosakeri, appeared. He submits that when -4- NC: 2024:KHC-D:18500 WP No. 107626 of 2024 they filed the mutual consent divorce petition, in that there was a clause with regard to the custody of the child and it was agreed between the parties that the custody would be with the mother. When the Court passed the judgment and decree dated 03.12.2021, the said aspect of custody of the child is not reflected in the order. Both the counsel submit that as it is the intention of the parties and in the interest of the parties, it is very much necessary that the said clause with regard to custody has to be incorporated in the judgment and decree passed by the Trial Court.
5. Learned counsel appearing for the respondent/husband submits that it is the intention of both the parties and they have also stated in the petition that the custody of child is with the mother.
6. Having heard the learned counsel on either side, perused the material on record.
7. The parties have entered into a compromise and basing on the compromise, the judgment and decree dated 03.12.2021 is passed. In this case, a petition is filed seeking -5- NC: 2024:KHC-D:18500 WP No. 107626 of 2024 divorce by mutual consent. It is an admitted fact that in the petition that is filed for divorce, the parties had categorically stated about the custody of the child which has to be with the mother. For whatsoever reason that is not reflected in the order. For all practical purposes, unless and until, the custody of the child is clarified, it would be difficult for them to proceed in certain matters. The Court had only considered the scope of Section 152 of CPC. Whatever is the provision that is quoted by the parties, ultimately the endeavour of the Court must be to do substantial justice to the parties. The procedural law is hand made of justice. When the Court has failed to incorporate a particular clause whereby the parties have agreed on the custody of the child, quoting provision of Section 152 or considering its scope is not warranted. The Court ought to have considered the relief that is sought for by the parties particularly when both of them are agreeing on that.
8. In the interest of both parties and to give a quietus to the litigation, this Court deems it appropriate to pass the following:
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NC: 2024:KHC-D:18500 WP No. 107626 of 2024 ORDER
i) Accordingly, the writ petition is allowed. The impugned order dated 03.07.2023 passed on application under Section 152 CPC in M.C. No.254/2021 by the Principal Judge, Family Court, Dharwad is hereby set aside, and consequently the said application is allowed.
ii) The Family Court is directed to incorporate the clause relating to custody of the child the judgment in M.C. No.254/2021.
iii) All pending I.As., in this petition shall stand closed.
Sd/-
JUSTICE LALITHA KANNEGANTI KMS List No.: 1 Sl No.: 33