Karnataka High Court
Smt.Pooja G Kulkarni vs State Of Karnataka on 22 April, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
W.P.H.C. NO.11 OF 2022
BETWEEN:
SMT. POOJA G. KULKARNI
W/O RAJAN SINGH
AGED ABOUT 37 YEARS
RESIDING AT NO.18/2
2ND CROSS ROAD, 10TH CROSS
BHEL LAYOUT, CHIKKABETTA HALLI
VIDYARANYAPURA
BANGALORE-560097.
... PETITIONER
(BY MR. BOJANNA K.J. ADV., FOR
MR. RAVIKUMAR M.C. ADV.,)
AND:
1. STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPARTMENT OF HOME
VIDHAN SOUDHA
BANGALORE-560001.
2. THE INSPECTOR OF POLICE
YELAHANKA POLICE STATION
YELAHANKA NEW TOWN
POLICE STATION
BANGALORE-560064.
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3. SHRI. RAJAN SINGH
S/O MOHAN SINGH
AGED ABOUT 42 YEARS
RESIDING AT TOWER E
6TH FLOOR, FLAT NO.603
HABEILA VALENCIA HOUSE
SECTOR 1, GREATER NOIDA
UTTAR PRADESH-201306.
... RESPONDENTS
(BY MR. THEJESH P, HCGP FOR R1 & R2
MR. UMAR-E-FAROOQ, ADV., A/W
MR. RONALD D'SA FOR
MR. MOHAMMAD TAHIR, ADV., FOR R3)
---
THIS WPHC IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF HABEAS
CORPUS AND SUCH OTHER DIRECTION AS MAYBE REQUIRED
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE
DIRECTING THE RESPONDENT NO.3 TO PRODUCE THE CHILD
BEFORE THIS HON BLE COURT. DIRECT THE RESPONDENT NO.1
AND RESPONDENT NO.2 TO CO-ORDINATE WITH THEIR COUNTER
PART AT BISRAKH POLICE STATION , GAUTHAM BUDHA NAGAR,
GREATER NOIDA TO FACILITATE PRODUCING THE CHILD BEFORE
THIS HON BLE COURT IN THE NEXT DATE OF HEARING.
THIS WPHC COMING ON FOR ORDERS, THIS DAY,
ALOK ARADHE J., MADE THE FOLLOWING:
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ORDER
Mr.Bojanna K.J. for Mr.Ravikumar M.C., learned counsel along with the petitioner.
Mr.Thjesh P., learned High Court Government Pleader for respondent Nos.1 and 2.
Mr.Umar-E-Farooq along with Mr.Ronald D'souza, learned counsel for respondent No.3 along with the respondent No.3.
The child Ishaan is also present before the court. Heard.
This petition has been filed seeking a writ of habeas corpus for production of minor child Ishaan.
2. Facts leading to filing of this petition briefly stated are that the petitioner is employed in Standard Chartered Bank in Bangalore, whereas, the respondent No.3 is a Software Engineer employed in Greater Noida (Uttar Pradesh). The marriage between the parties was solemnized on 16.02.2009 in Kanpur, 4 U.P. A son was born out of the wedlock on 06.05.2013 in Bangalore viz., Ishaan.
3. The petitioner as well as respondent No.3 were unable to lead a happy married life on account of severe differences of opinion between them. Admittedly, the minor child viz., Ishaan was residing with the petitioner in Bangalore and was prosecuting his studies in DPS School, Electronic City. It is also not in dispute that respondent No.3 has initiated proceedings under the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act' for short) seeking custody of the minor child viz., Ishaan.
4. However, during the course of mediation proceedings between parties in Noida. Admittedly, in the month of October 2021, the respondent No.3 took away the custody of the child by stating that he would return the custody of the child to the petitioner within 5 a period of 15 days. However respondent No.3 thereafter, did not return the custody of the child to the petitioner. Since, October 2021, the minor child viz., Ishaan is residing with his father in Greater Noida. In the aforesaid factual background, this petition has been filed seeking a writ of habeas corpus.
5. Learned counsel for the petitioner submitted that admittedly, the son viz., Ishaan was residing with the mother in Bangalore. However, his custody has been taken away illegally by respondent No.3. It is further submitted that the petitioner who is the mother of the child did not have any access to the child and was not even permitted to speak to the child.
6. On the other hand, learned counsel for respondent No.3 submitted that the petitioner intends 6 to re-marry and therefore, respondent No.3 does not want his child to be exposed to an alien person. It is further submitted that he is competent to take care of his son. It is also submitted that he has never prevented the petitioner from having access to the child and the petitioner is at liberty to speak to the child at any time and can meet him.
7. We have considered the rival submissions made on both sides and have perused the record. The issue, which arises for consideration in this appeal is with regard to custody of the child during the pendency of the proceedings under the Act initiated by respondent No.3. Admittedly, the son viz., Ishaan was in lawful custody of the mother from December 2014 till October 2021. The respondent No.3 himself has initiated the proceeding seeking custody of the child in the Courts at Noida under the Guardians and Wards Act, 1890. However, without waiting for the 7 orders of the court pertaining to the custody of the child, the respondent No.3 has taken the custody of the child from the mother on the pretext that he would return the custody of the child to the mother. Therefore, in the peculiar fact situation of the case, we direct respondent No.3 to immediately hand over the custody of the child to the petitioner pending adjudication of the issue with regard to the custody/ interim custody of the minor child in a proceeding under the Guardians and Wards Act, 1890.
8. Needless to state that respondent No.3 is at liberty to prosecute the remedy seeking custody/ interim custody of the child, which is pending under the Act. It is also well settled in law that concept of guardianship of a ward is essentially different from custody of the ward. For the interregnum, this court has to ensure that sufficient visitation rights to a parent who is not given child's custody should be 8 granted so that the child may not lose social, physical and psychological contact with the parent. The parents are under an obligation to provide for an environment which is reasonably conducive to the development of the child. It is in the best interest of the child to have parental care of both the parents if not joint then at least separate. Therefore, in the facts and circumstances of the case pending adjudication of the issue of custody of the child under the Guardians and Wards Act, 1890, we issue following directions:
(i) The Father is entitled to communicate with the child through phone / video call / skype etc. at any time after school hours.
(ii) The petitioner shall keep the respondent No.3 informed about the day to day development of the minor son to respondent No.3 on the Sunday of every week.
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(iii) The respondent shall be at liberty to visit Bangalore during weekends and shall be entitled to spend time with the child between 10.00 a.m. to 5.00 p.m.
(iv) The respondent No.3 shall be at liberty to file an application under the Guardians and Wards Act, 1890 seeking temporary custody of the child.
(v) It has been stated on behalf of respondent No.3 that the petitioner is likely to re-marry, in such an eventuality, it is directed that the court before which the proceeding under the Act is pending shall bear in mind the aforesaid eventuality while passing appropriate orders in accordance with law.
With the aforesaid directions, the writ petition is disposed of.
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A copy of this order shall be furnished to learned High Court Government Pleader.
Sd/-
JUDGE Sd/-
JUDGE SS