Karnataka High Court
Ram Nithin Baalay vs Megha Bordoloi on 25 February, 2025
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
-1-
NC: 2025:KHC:8762
WP No. 27355 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.27355 OF 2024 (GM-FC)
BETWEEN:
RAM NITHIN BAALAY
S/O.LATE BHOOMARAJAM BAALAY
AGED ABOUT 38 YEARS
R/AT 1-8-700/21, PADMA COLONY
NALLAKUNTA
HYDERABAD-500 044
...PETITIONER
(BY MS.DEEPA J., ADVOCATE)
AND:
MEGHA BORDOLOI
D/O.MRIDUL KUMAR BORDOLOI
AGED ABOUT 38 YEARS
R/AT FLAT NO.108, 'A' TYPE
HAVING NEW MUNICIPAL NO.627/B-FF-108
ON THE FIRST FLOOR
BERNESE BLOCK, "ALPINE ECO"
MARATHAHALLI
Digitally signed BENGALURU-560 037
by ...RESPONDENT
GAVRIBIDANUR
SUBRAMANYA (BY SMT.GEETHA DEVI M.P., ADVOCATE)
GUPTA
SREENATH THIS WRIT PETITION IS FILED UNDER ARTICLES 226
Location: High
Court of AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
Karnataka
QUASH THE ORDER DATED 01.10.2024 PASSED ON I.A.NO.15
IN G & W NO.3/2022 BY II ADDITIONAL PRINCIPAL JUDGE,
FAMILY COURT, BENGALURU VIDE ANNEXURE-A.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
-2-
NC: 2025:KHC:8762
WP No. 27355 of 2024
CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR
ORAL ORDER
This petition is filed by the petitioner-father of the minor child challenging the interim order dated 01.10.2024 passed on IA.No.15 in G & W No.03/2022 by II Additional Principal Judge, Family Court at Bengaluru.
2. The respondent-mother had initiated a petition for custody and guardianship of the minor child in G & WC.No.3/2022 against the petitioner-father. In the said proceedings before the Family Court, IA.No.15 came to be filed by the petitioner-father seeking 50% of the custody and visitation rights of the minor child during all Summer, Winter, Diwali and Dasara vacations and any other vacations which the School declares every year.
3. The said application, on contest by the respondent-mother, came to be partly allowed by granting visitation rights; the Family Court granted the visitation rights to the father during Dasara, Diwali, Winter and Summer vacations for continuous three days either in the -3- NC: 2025:KHC:8762 WP No. 27355 of 2024 first half or second half of vacations after discussion with the wife from 10:00 a.m. to 7:00 p.m. It was also ordered that the petitioner-father shall not take his minor son out of Bengaluru and consequently, other orders were passed with regard to safety, security and welfare of the minor child and for co-operation during the visitation rights. Hence, the petitioner-father has questioned the said order in this petition.
4. It is vehemently contended by learned counsel for petitioner-father that the impugned order passed by the Family Court is arbitrary or one sided, which is against the principles of the child parenting rights and welfare and wellbeing of the minor child. It is contended by learned counsel that the minor child is presently aged 4 years and he is going to a Day Care Centre and it is equally essential for the father to have the child custody and visitation rights for proper growth and development of the minor child, physically, psychologically and mentally. -4-
NC: 2025:KHC:8762 WP No. 27355 of 2024 4.1 It is the contention of learned counsel for petitioner that the father is a permanent resident of Hyderabad and mother is residing in Bengaluru along with the minor child. During the proceedings before the Family Court, the father has been travelling from Hyderabad to Bengaluru to visit the minor child and have visitation rights by spending huge amount during weekends and diligently following up all the visitation rights and going back to Hyderabad after spending two days with the minor child in Bengaluru, thereby she contends that the father is showing keen interest in taking care of welfare and well being of the minor child. When such being the case, it is also the requirement of the child to have the love, attention, care and close relationship with the father for proper growth and development in the formative and later years.
4.2 Learned counsel vehemently contends that in a child's custody case, the welfare of the child is primary importance and the equal child parenting time is required -5- NC: 2025:KHC:8762 WP No. 27355 of 2024 to be granted by the Court and it cannot be one sided by granting the entire custody to the mother and only few hours of visitation rights to the father, which does not augur well with the child parenting rights as per several judgments rendered by the Hon'ble Apex Court and this Court. Learned counsel further contends that these crucial aspects of co-parenting, shared parenting and equal custody and visitation rights to the father and the mother has been ignored by learned Family Judge, while passing the impugned order on IA.No.15.
4.3 It is further contended by learned counsel that the minor child is presently going to a Day Care Centre and the mother is unemployed. Therefore, in the interest of the minor child, he be handed over to the father during Summer, Winter, Diwali and Dasara vacations and any other vacations that is declared by the School, so that the father and the son could spend 50% vacations with each other for proper growth and development of the minor child. Learned counsel further contends that the father has -6- NC: 2025:KHC:8762 WP No. 27355 of 2024 been visiting the minor child and there is a good relationship between the father and the son, so also, the child is interacting with the grandparents and he is not having any aversion or ill will against the father or being in company of the father or in relationship with parents and relatives of the father or to travel to Hyderabad. Learned counsel contends that the impugned order passed by the Family Court is arbitrary and one sided as the Family Court has not granted the custody and visitation rights as sought for except granting continuous three days either in first half or second half of vacations from 10:00 a.m. to 7:00 p.m. at Bengaluru. Under the circumstances, it is the vehement contention of the petitioner that the visitation rights be granted equally, so that the father can spend quality time with the child and so also the minor child. On these grounds, learned counsel seeks to allow the petition and consequently, the application filed in IA.No.15 for custody and visitation rights of the minor child during the vacations as stated in the application. -7-
NC: 2025:KHC:8762 WP No. 27355 of 2024
5. Per contra, Smt.Geetha Devi M.P. representing the respondent-mother vehemently contends that the minor child is just aged about 3 years 10 months and she submits that the child is very attached to the mother emotionally and psychologically and the impugned order passed by the Family Court is justifiable by contending that the child is having regression of growth and is suffering from few ailments. The minor child is accustomed to certain eating habits and he cannot be permitted to travel to Hyderabad or left alone with the father for the vacations because he is too young and is attached to the mother more than the father as the father has not been continuously exercising the custody and visitation rights of the minor child, so also, it is vehemently contended by learned counsel for respondent that the mother has been taking care of the interest of the child right from the birth; the daily routine activities of the child is strictly followed; the child being at the tender age would not be able to sustain the sudden change of environment and accommodation with the father in the new place; he would -8- NC: 2025:KHC:8762 WP No. 27355 of 2024 start crying in the night, if the custody and visitation rights of the minor child is shifted from the mother to father.
5.1 It is also vehemently contended that the child is accustomed to the home environment of the mother so also the friends and the peer groups and also the discipline that is maintained by the mother over a period of time as he continuously stayed and remained with the mother since his birth, which would probably get defeated if the custody and visitation rights is shifted suddenly to the father, who cannot take proper care and there is no female member in the house of the father.
5.2 It is further contended that if he shift suddenly to a new location with different climatic conditions, it would also affect the minor child's growth, development and health. It is also contended that the mother has been taking proper care and attention with regard to limiting the screen time and the gadget time of the minor child, which would have to be continuously monitored by the mother and the same cannot happen in the care and custody of -9- NC: 2025:KHC:8762 WP No. 27355 of 2024 the father. Therefore, when the child is young and at tender age and is going to a Pre-School, it may not be proper to shift the custody and visitation rights from the mother to the father.
5.3 Learned counsel contends that the order passed on the application in IA.No.15 by the Family Court is justified and the same does not call for any interference. She also contends that during the pendency of the proceedings before the Family Court, the Coordinate Bench of this Court vide order dated 18.07.2024 in WP.No.12734/2022 has granted the visitation rights to the father on 1st, 2nd and 3rd Saturdays between 10:00 a.m. to 6:00 p.m. and Sundays between 10:00 a.m. and 4.00 p.m. and if at all, there is 5th weekend, that is also provided to the father to have visitation rights between 10:00 a.m. and 4:00 p.m. When this being the case, the substantial custody and visitation rights have been granted to the father. Therefore, the father cannot have grievance that he is not being permitted to visit the child.
- 10 -
NC: 2025:KHC:8762 WP No. 27355 of 2024 Under the circumstances, she contends the present petition challenging the impugned order passed on IA.No.15 deserves to be rejected and the order passed by this Court in the said petition in WP.No.12734/2022 be continued in the welfare, wellbeing and interest of the minor child.
5.4 Learned counsel for the petitioner has relied upon the following judgements in support of her case for grant of custody and visitation rights, whereas learned counsel for respondent contends that the judgements so relied on by learned counsel for petitioner may not be applicable to the facts of the present case for the reason that each and every case depends on its own facts and circumstances based on the age of the child and the mental condition and status of the child.
6. I have heard learned counsel for petitioner and learned counsel for respondent. The relationship between the parties, the child born from the marriage and the age of the child now being presently 4 years are not in dispute.
- 11 -
NC: 2025:KHC:8762 WP No. 27355 of 2024 The question to be considered by this Court for the present is:-
"Whether the petitioner-father is entitled to have the custody and visitation rights of the minor child during Summer, Winter, Diwali and Dasara vacations and other vacations and if so, to what period of time?"
7. It is no more res integra that in cases of child's custody and visitation rights, it is the paramount consideration of the welfare, well being and the interest of the minor child rather than that of the parents that has to be looked into. Therefore, while considering any application for visitation and custody rights, the interest of the minor child has to be taken as paramount consideration and equally looking at what is good for parents with regard to the growth, development and welfare of the child. However, a shared parenting or co-parenting is required, so that the child's growth is not stunted or regressed and he is able to have the love and affection of both the parents that is the father and the
- 12 -
NC: 2025:KHC:8762 WP No. 27355 of 2024 mother. In most of the cases, where a dispute arises between the father and the mother and a child is involved, it is the child who bears the brunt/consequences due to the differences of opinion and the dispute between the father and mother. However, at the end of the day, it is the child who would be shifted from one parent to the other parent to see that the child does not suffer or get alienated from any of the parent. Therefore, in the best interest of the minor child, it will be relevant to examine the aspect of joint legal custody or joint physical custody or shared parenting in the cases where the parents reside in the same place and location.
8. In the cases, where the parents are residing in two different locations and cities, in the interest of the minor child and without disturbing the daily routine of the minor child, it would be relevant to provide reasonable access, visitation and custody rights to the non custodial parent. It is also very relevant to see the child's interest with regard to his relationship with the custodial parent;
- 13 -
NC: 2025:KHC:8762 WP No. 27355 of 2024 the environment he is presently residing so also that of his friends, peer groups, his other extended family members and also the child having access to the non custodial parent and the relatives and extended family of the non custodial parent. In the interest of the minor child, this Court proposed both the parties to agree to some co- parenting or shared parenting plan, but unfortunately, it could not work out and they were unable to arrive at a consensus for a shared parenting plan, thereby the matter is back before this Court to pass an order on merit.
9. This Court, having the jurisdiction of parens patriae, will have to decide what is in the best interest of the minor child considering the age of the minor child so also the location, climatic conditions and his peer groups and present academic situation of the child. Presently, the child is residing with the mother, going to a Pre-school/ Day Care Centre called KLAY. Therefore, he is accustomed to the accommodation in which he is staying along with
- 14 -
NC: 2025:KHC:8762 WP No. 27355 of 2024 the mother and peer groups and that of his friends and neighbourhood.
10. Be that as it may, all these things cannot act as deterrent to deprive custody and visitation rights to the father, who is also equally important in the growth and development of the minor child. In the present application, the father is interested in spending Summer, Winter, Diwali and Dasara vacations and also any other vacations that is declared by the School every year. As stated earlier, the father is exercising the weekend visitation rights during 1st, 2nd and 3rd Saturdays and Sundays, which is continuing and is not hindered. For the present, this Court is of the opinion that for proper growth and development and in the interest of the minor child, it would be necessary that the minor child spends equal amount of time with the father in the Summer, Winter, Diwali and Dasara vacations as that of what he spends with the mother, which will enhance and develop love and bonding between the child and father. The learned Judge
- 15 -
NC: 2025:KHC:8762 WP No. 27355 of 2024 of the Family Court has not adverted to these issues while deciding the custody and visitation rights on the grounds that the child is very young, it would be difficult for the child if he travels and spends the overnight with the father in the absence of the mother; it may become difficult for the father to take care and manage the child as the father is resident of Hyderabad, whereas the mother is residing in Bengaluru. It is seen from the records placed by the father and the photographs produced that the minor child has been spending good quality time with the father and there is no difficulty encountered as of now, as the visitation rights have been granted during the weekends at Bengaluru and the father travels from Hyderabad to exercise visitation rights of the child.
11. As stated by me earlier in the child custody petition, it is seen that the custodial parent has more number of days to spend with the child rather than the non custodial parent. Therefore, some reasonable custody and visitation rights would have to be given to the non
- 16 -
NC: 2025:KHC:8762 WP No. 27355 of 2024 custodial parent to have access and visitation of the minor child so that the minor child could spend quality time with the non custodial parent for proper growth and development. Otherwise, there would be an alienation from the other parent which would affect the growth and development of the minor child and also may cause certain embarrassment in the peer group, the School activities and in other places. It is also relevant and necessary for both parties to participate in all the activities of the minor child, both in the School and outside the School.
12. Under the circumstances, this Court is of the opinion that the custody and visitation rights sought for by the father during Summer, Winter, Diwali and Dasara vacations and other vacations deserves to be granted to the father. Accordingly I pass the following:
ORDER
i) The petition filed by the petitioner-father is allowed;
- 17 -
NC: 2025:KHC:8762 WP No. 27355 of 2024
ii) The impugned order dated 01.10.2024 passed on IA.No.15 in G & W No.03/2022 by II Additional Principal Judge, Family Court at Bengaluru, is hereby set-aside;
iii) IA.No.15 is hereby allowed;
iv) The petitioner-father shall have custody and visitation rights of the minor child on 50% equal sharing basis on all Summer, Winter, Diwali and Dasara vacations;
v) The petitioner-father shall have the custody and visitation rights of minor child on 30.03.2025 from 2:00 p.m. onwards;
vi) The petitioner-father shall have the custody of the minor child for a period of 15 days. On completion of the 15th day, the petitioner-father shall handover the custody of the minor child to the respondent-mother, who shall have visitation and custody rights for the next 15 days and again thereafter, the petitioner-father shall have visitation rights for next 15 days and handover the
- 18 -
NC: 2025:KHC:8762 WP No. 27355 of 2024 custody of the minor child for the remaining part of the vacations to the respondent-mother;
vii) It is a needless to mention that the petitioner-
father shall take proper care and attention of the minor child while in custody with regard to food habits, the discipline of the child in limiting the screen time and the gadget time and also if possible, pick up routine food habits from the respondent-mother;
viii) It is also made clear that in case of any holidays declared by the School for more than four days i.e. for a week, the petitioner-father is at liberty to have custody and visitation rights for 50% equal number of days and he shall spend that time in Bengaluru and such an application or memo could be moved before the Family Court as and when such holidays arise and the same shall be allowed by the Family Court;
ix) When the minor child is in the care and custody of the petitioner-father during vacations as stated
- 19 -
NC: 2025:KHC:8762 WP No. 27355 of 2024 hereinabove, the petitioner-father shall provide access to the child to have telephonic conversation, both audio/video calls with the respondent-mother everyday between 7.00 p.m. and 8.00 p.m.;
x) In case, the respondent-mother wants to speak to the child apart from the period mentioned hereinabove, the petitioner-father shall facilitate the respondent-mother to speak to the child, if at all required on any day requested by the respondent-mother;
xi) The arrangements made hereinabove at clauses-
(f) and (g) shall also be equally applicable to the respondent-mother, when the minor child is in the custody of the respondent-mother;
xii) It is also made clear that when the minor child is in the custody of the respondent-mother during vacations, the weekend visitation rights granted to the petitioner-father shall stand suspended.
- 20 -
NC: 2025:KHC:8762 WP No. 27355 of 2024 In view of disposal of the petition, pending application in IA.No.3/2024 does not survive for consideration and the same pales into insignificance.
IA.No.1/2025 is filed by the petitioner-father before this Court for the first time, which has not been filed or agitated or moved before the Family Court. Considering the hierarchy of the Courts, this application would have to be moved before the jurisdictional Court i.e. the Family Court and the Family Court shall decide such application on its merits.
This Court has not expressed any opinion on the said application in IA.No.1/2025, which shall be dealt on its own merits.
Sd/-
(PRADEEP SINGH YERUR) JUDGE LB List No.: 1 Sl No.: 20