Karnataka High Court
Smt Ram Nithin Baalay vs Ms Megha Bordoloi on 18 July, 2024
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NC: 2024:KHC:28210
WP No. 12734 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 12734 OF 2022 (GM-FC)
BETWEEN:
MR.RAM NITHIN BAALAY
S/O LATE BHOOMA RAJAM BAALAY
AGED ABOUT 36 YEARS
RESIDING AT 1-8-700/21
PADMA COLONY, NALLAKUNTA
HYDERABAD-500 044.
...PETITIONER
(BY SRI.ARUN GOVINDARAJ, ADVOCATE)
AND:
MS.MEGHA BORDOLOI
D/O MRIDUL KUMAR BORDOLOI
AGED ABOUT 36 YEARS
RESIDING AT FLAT NO.108, "A" TYPE
HAVING NEW MUNICIPAL NO.627/B-FF-108
1ST FLOOR BERNESE BLOCK
Digitally ALPINE ECO, MARATHALLI
signed by
MEGHA BENGALURU-560 037.
MOHAN ...RESPONDENT
(BY SMT.M.P.GEETHADEVI, ADVOCATE)
Location:
HIGH COURT
OF THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
KARNATAKA OF THE CONSTITUTION OF INDIA, PRAYING TO MODIFY THE ORDER
DATED:28.3.2022 PASSED BY THE LD II ADDL. PRINCIPAL JUDGE
FAMILY COURT IN G AND WC 03/2022 (PRODUCED AT ANNEXURE-A)
AND GRANT INTERIM UNSUPERVISED CUSTODY OF THE PARTIES
MINOR SON MASTER NEEL BAALAY, TO THE PETITIONER ON
WEEKENDS (FROM SATURDAY 10 AM TO SUNDAY 6 PM) AND ISSUE
DIRECTION SUCH THAT THE PETITIONER BE PERMITTED TO
INTERACT WITH THE PARTIES MINOR SON MASTER NEEL BAALAY
EVERY DAY THROUGH AUDIO/VIDEO CALL FOR A PERIOD FOR
FIFTEEN MINUTES.
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NC: 2024:KHC:28210
WP No. 12734 of 2022
THIS PETITION, COMING ON FOR "DISMISSAL", THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The present writ petition is filed aggrieved by the order passed on I.A.No.IV in G & WC.No.3/2022 dated 28.03.2022 by the II Addl. Principal Judge, Family Court, Bengaluru, the father is before this court.
2. Both the parties are referred to as husband and wife for the sake convenience.
3. The family court had granted visitation rights to the minor child on 1st and 3rd Sunday of every month from 11.00 a.m to 1.00 p.m at a common place after holding discussion with the mother. This matter came up before this court on 11.03.2024, this court had permitted the father to exercise the visitation rights on 1st, 2nd and 3rd Saturday and Sunday of every month and on 4th Saturday and Sunday, the boy shall be with the mother, as the mother is also a working woman. This court also observed that it was a temporary arrangement. For 16th, 17th, 23rd and 24th of March, 2024 the order was passed granting visitation rights between 10.00 am. to 5.00 p.m. This -3- NC: 2024:KHC:28210 WP No. 12734 of 2022 court has specifically observed that during the visitation, the mother shall be permitted to have contact with the child and if the child wants to talk to the mother, the father should make the necessary arrangements. It is also stated that the father has taken a premises which is very near to the place where the child and mother are residing. The father is permitted to pick up the child from the mother's place and drop the child by 5.00 p.m. As per the earlier orders video call on Tuesday and Thursday for 15 minutes at 7.20 p.m shall continue. There after another order came to be passed on 26.03.2024 as the boy's birthday was on 30.03.2024, on that day from 11.00 a.m to 2.00 p.m. the father can exercise the visitation rights. In continuation to the earlier order, on 1st, 2nd and 3rd Saturday and on Sunday between 10.00 a.m. to 5.00 p.m. the visitation continued. By order dated 27.06.2024, this court had granted the visitation on Friday i.e., on 28.06.2024 between 5.00 p.m. to 8.00 p.m. and on Sunday i.e., on 30.06.2024 between 10.00 a.m. to 5.00 p.m and the court had observed that with regard to the overnight custody, whatever the objections the mother has, she shall come up with her objections and when the mother comes up on the next occasion, final order will be -4- NC: 2024:KHC:28210 WP No. 12734 of 2022 passed considering the case of both the parties. Now objections are filed by the mother stating that the father is feeding the boy with junk food and he is permitting the boy to watch phone with lot of screen time and with regard to the hygiene also certain concern were raised. It is submitted that the boy is feeling very tired and the moment he comes on Sunday, he feels sleepy. It is also stated that the father is not adhering to the timings strictly as per orders passed by this court and also the mother is not receiving any calls from the child during visitation.
4. It is submitted that the father had visited the school even before the mother reached the school, he tried to take away the boy from the school. It is submitted that boy is of tender age and this is not the stage where overnight custody can be granted. He was with the mother always and staying with father for this long time during the weekend is making lot of difference and the manner in which he has been brought up by the mother and in the weekends how he has been taken care of is not the same and this is also making lot of difference in bring up the boy. Learned counsel submits that at this age, father cannot be permitted to have overnight custody. -5-
NC: 2024:KHC:28210 WP No. 12734 of 2022
5. Learned counsel appearing for the petitioner/father submits that the father is denying all the allegations made by the wife and submit that he has been taking care of the boy, he is given home cooked food and infact he is ready to take care of the boy in the manner in which the wife is taking care during remaining 5 days and he will make sure that whatever the routine that is followed while the boy was with the mother, the same would be followed during visitation by the father. It is submitted that infact the mother had given the access card to go to school, question of the father going without the notice of the mother will not arise. It is submitted that the paternal grand mother of the boy is coming to Bangalore on 20.07.2024 and it is been three years she has come to Bangalore as she is having some ailments and she is not in a position to travel. Learned counsel submits that the boy is comfortable with the father and he needs overnight custody of the boy particularly on 20.07.2024 when the grand mother is coming. It is submitted as they did not have an opportunity to file objections, liberty shall be granted to the father. -6-
NC: 2024:KHC:28210 WP No. 12734 of 2022
6. In response to that, learned counsel for the respondent/wife submits that if the father wants overnight custody of the boy an appropriate application needs to be filed before the court and at this point of time, considering the welfare of the child, the overnight custody cannot be granted to the father. She submits that overnight custody of the boy cannot be given even on 20.07.2024 when the grand mother is coming. As the grand mother is there who can take care of the child, considering the fact that the boy is spending the time with the father from several weekends as per the orders passed by this court and also this is not an arrangement that is made on regular basis as the grand mother is coming to Bangalore, this court deems it appropriate to grant overnight custody on that day.
7. Having heard the learned counsels on either side, perused the entire material on record. By virtue of the orders passed by this court, the father is meeting the child on three weeks on 1st, 2nd and 3rd Saturday and Sunday of every month. Earlier the boy was taken to Hyderabad along with the mother. This court had carefully considered the submissions advanced on behalf of both parties and also the objections that are filed. -7-
NC: 2024:KHC:28210 WP No. 12734 of 2022 Some of the objections that are raised without going into the disputed questions, but the concerns that are raised by the mother are genuine. Some of the objections that are raised by the mother with regard to the sleep pattern, screen time and also hygiene and food appears to be genuine. According to the father, he is adhering to everything and the boy is given the home food. When it comes to going to the school, the father ought not to have gone to the school when he was not having the visitation at that time without the knowledge of the mother. From hereafter without the orders of the court, the father shall not go to the school, except on parents-teacher's meeting. If any permission is required, the father can move an appropriate application before the family court. Considering all these aspects and taking into consideration the welfare of the boy, this court deems is appropriate to dispose off this writ petition in the following manner:
i. The father shall continue to have the visitation rights on 1st, 2nd and 3rd Saturday and Sunday. On a Saturday he shall exercise visitation rights between 10.00 a.m. to 6.00 p.m. and on Sunday from 10.00 to 4.00 p.m. -8- NC: 2024:KHC:28210 WP No. 12734 of 2022 ii. The father shall pick up the child on time and shall drop the child on time and both the father and mother shall adhere to the time lines strictly.
iii. Whether the child asks or not, while the boy is with the father, at least two times during the stay the father shall see that the boy speaks with the mother. iv. The food that the boy regularly takes, details of the same shall be shared to the mother. The Junk food which is not good for the boy shall not be given by the father and the boy should not left with the gadgets for longer time.
v. Except on any function in the school and on the parent-teacher's meeting, on other occasions where parents are invited the father shall not go to school, if he wants to go to school he shall move the court and without the prior permission of the court the father shall not go to the school.
vi. In a month if there is 5th weekend, the father can visit the boy on that Saturday from 10.00 a.m. to 6.00 p.m. and on Sunday from 10.00 a.m. to 4.00 p.m. vii. As far as the overnight custody of the boy and vacations are concerned, the father is at liberty to move an appropriate application before the court. -9-
NC: 2024:KHC:28210 WP No. 12734 of 2022 viii. On 20th July, 2024, Saturday the mother shall pickup the child at 6.00 pm in the evening and drop back the child on Sunday 21st July, 2024 at 2.00 p.m. If at any point of time the child is not comfortable that should be immediately brought to the notice of the mother and the child must be sent back to the mother. ix. This interim arrangement with regard to the overnight stay of the boy on 20.07.2024 is only considering the fact that the grand mother is coming to Bangalore, the court shall decide the application for overnight custody if at all filed independently, notwithstanding the fact that the order is passed by this court granting overnight custody.
x. The father has not filed reply to the objections filed by the mother and as such he is at liberty to raise his objections in an appropriate petition.
xi. After the 3rd Saturday and Sunday, on 4th Monday of the month the father can exercise visitation rights between 10.00 a.m. to 4.00 p.m. xii. Accordingly, the writ petition is disposed off. xiii. All the IAs., in this writ petition shall stand closed.
SD/-
JUDGE TS, List No.: 1 Sl No.: 43