Karnataka High Court
Soumya Udupa vs Vinay Doddaballapur Eswara on 6 July, 2022
Author: B.Veerappa
Bench: B.Veerappa
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WPHC No. 62 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
WRIT PETITION HABEAS CORPUS NO. 62 OF 2022
BETWEEN:
1. SOUMYA UDUPA,
D/O LATE VIVEK UDUPA,
AGED 39 YEARS,
R/AT NO.102, TOWER-3,
PEBBLE BAY, 1ST MAIN,
R.M.V. 2ND STAGE,
SANJAYNAGAR,
DOLLARS COLONY,
BANGALORE-560094.
...PETITIONER
(BY SRI L. GOVINDRAJ, SENIOR COUNSEL FOR
SRI ARUN GOVINDRAJ, ADVOCATE)
AND:
1. VINAY DODDABALLAPUR ESWARA,
S/O LATE D. R. ESWARA,
Digitally signed by AGED 44 YEARS,
GAVRIBIDANUR R/AT F-506, SPRINGFIELD APARTMENTS,
SUBRAMANYA
GUPTA SARJAPURA ROAD,
SREENATH BELLANDUR GATE,
Location: High BANGALORE-560094.
Court of Karnataka
...RESPONDENT
*****
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WPHC No. 62 of 2022
THIS WPHC IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, BY THE PETITIONER, PRAYING
TO ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS
DIRECTING THE RESPONDENT TO PRODUCE THE GIRL
CHILDREN- AHANA AND MRIDULA BEFORE THIS COURT AND
THEN HAND THE CHILDREN TO HER CUSTODY.
THIS WPHC COMING ON FOR ORDERS THIS DAY,
B.VEERAPPA J., MADE THE FOLLOWING:
ORDER
The divorced wife filed the present Petition for a writ of Habeas corpus directing the respondent to produce the girl children - Ahana and Mridula before this Court and then hand over the children to her custody.
2. It is the case of the petitioner that the marriage between the petitioner and the respondent was solemnized according to Hindu rites and rituals at Bengaluru on 5.9.2005. The elder daughter - Ahana was born on 15.8.2007 and the younger daughter - Mridula was born on 25.4.2011. With the passage of time, the marriage began to flounder, thereby the parties filed M.C. No.5365/2017 before the Family Court, Bangalore seeking divorce by mutual consent. The Family -3- WPHC No. 62 of 2022 Court by the Judgment & Decree dated 27.6.2018 based on the settlement agreement between the parties, has dissolved the marriage solemnized between the parties by mutual consent. The legal custody of the minor children was granted to the petitioner/mother. Subsequently, the petitioner became a victim to alcohol owing to harassment meted out by the respondent. Since there was no conducive atmosphere in the house for the welfare and well-being of the children, she voluntarily resolved to put the children in the care of the respondent until she recovers from ill-health. However, she remained in constant touch with the children. After recovery, she requested the respondent to hand over back the children, but he refused to do so. Therefore, the petitioner got issued legal notice to the respondent, on 20.7.2021. When things stood thus, the respondent filed G & WC No.221/2021 claiming legal custody of the minor children for himself. On 4.8.2021, the respondent issued reply to the legal notice. The petitioner also instituted Execution No.37/2002 seeking execution of Judgment & Decree in M.C. No.5365/2017. Inspite of the same, the respondent has not handed over custody of the -4- WPHC No. 62 of 2022 minor children to the petitioner. Therefore, the present habeas corpus petition is filed by the petitioner.
3. We have heard the learned senior counsel for the petitioner.
4. Sri L. Govindraj, learned senior counsel for Sri Arun Govindraj, learned counsel for the petitioner contended that the Family Court granted legal custody of the children to the petitioner, in terms of the Memorandum of Settlement agreement between the parties. Owing to some unhappy circumstances, the children came into the care of the respondent. As the petitioner was not well, she voluntarily handed over children to the respondent. Thereafter when the petitioner requested the respondent to hand over back the children, he refused to do so. He would further contend that the respondent/husband filed G & WC No.221/2021 claiming custody of the minor children and the petitioner filed Ex.No.37/2022 seeking execution of the Judgment & Decree passed in M.C. No.5365/2017 and it will take its own time, thereby the present habeas corpus petition is filed against the respondent.
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5. Learned senior counsel would further contend that in terms of the memorandum of settlement agreement entered into under Section 89 of the Code of Civil Procedure r/w Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2007, the present petitioner shall have custody of the minor daughters and both parties shall be joint guardians of the minor children. The respondent shall however have free access to the minor children, subject to their convenience and he shall also be entitled to their interim custody from 5.30 p.m. on Friday evening until 8.30 p.m. Sunday, every alternate week end. Inspite of the judgment and decree in M.C. NO.5365/2017, the respondent is continuing with custody of the minor children. Therefore, he sought to allow the petition.
6. Having heard learned senior counsel for the petitioner, it is not in dispute that the marriage between the petitioner and the respondent was solemnized according to Hindu rites and customs on 5.9.2005, at Bengaluru. It is also not in dispute out of their marriage, two children - Ahana and Mridula were born and they are now aged 14 years and 11 years. It is also not in dispute that parties filed memorandum of agreement under Section 89 of the Code of Civil Procedure seeking divorce -6- WPHC No. 62 of 2022 by mutual consent. Accordingly, the learned Judge of the Family Court by the Judgment & Decree dated 27.6.2018, has dissolved the marriage between petitioner and the respondent based on the settlement agreement entered into between them and the legal custody of the minor children was granted, in terms of the settlement agreement. It is the voluntary statement of the petitioner in the present habeas corpus petition that she became a victim to alcohol and since there was no conducive atmosphere in the house for the welfare and well-being of the children, she voluntarily resolved that the children be put in the care of the respondent, until such time as she returned to health, but she remained in constant touch with the children. After recovery, inspite of her request, the respondent failed to hand over back the children and therefore, she got issued legal notice to the respondent and he replied. In the mean time, the respondent filed G &WC No.221/2021 seeking custody of the minor children for himself.
7. It is not in dispute that the petitioner is the decree holder, in terms of the judgment and decree passed in M.C. No.5365/2017 dated 27.6.2018. It is also not in dispute that the petitioner herself voluntarily handed over the children to -7- WPHC No. 62 of 2022 the custody of the respondent against the judgment and decree. Subsequently when the petitioner requested the respondent to hand over back the children to her custody, he refused and instead filed G & WC No.221/2021. It is also not in dispute that the judgment and decree passed in M.C. No.5365/2017 is executable and the petitioner already filed Execution No.37/2022 seeking execution of the judgment and decree. When the petitioner already filed execution petition for implementation of the judgment & decree and since the decree is executable, the present Habeas Corpus petition is not maintainable. We are shocked and surprised with regard to the submission made by the learned senior counsel that though Execution Petition filed, it will take its own time and therefore, present habeas corpus petition is filed. That is not a ground for grant of writ of habeas corpus. The petitioner is misusing the habeas corpus petition and when she herself violated the decree passed by the Family Court by mutual consent, it is for her to take steps to implement the decree. Therefore, the present Habeas Corpus petition is not maintainable. -8- WPHC No. 62 of 2022
8. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Tejaswini Gaud and others
-vs- Shekhar Jagdish Prasad Tewari and others reported in (2019)7 SCC 42, wherein the Hon'ble Supreme Court held at paragraph - 19 as under:
19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.-9- WPHC No. 62 of 2022
9. It is also well settled law that presenting a petition for Habeas Corpus is for the person for whose release the petition is filed, must be in "detention". He must be under detention by the authorities or by any private individual. It is the "detention" legal or illegal which gives the cause of action for maintaining the writ of Habeas Corpus. If the averments in the writ petition read as a whole do not disclose the detention, in other words, there is no allegation of illegal detention, the Writ Petition is liable to be rejected in limine. The principles of Order VII Rule 11 of CPC equally apply to a Writ of Habeas Corpus.
10. Admittedly in the present case, the petitioner voluntarily handed over children to the respondent, who is her erstwhile husband. Subsequently, when she requested to hand over back the children, he refused to do so and therefore, she filed Execution Petition. When the petitioner already filed execution petition for implementation of the judgment & decree and since the decree is executable, the present Habeas Corpus petition is not maintainable.
10. In view of the above, we pass the following:
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ORDER
i) The present Habeas Corpus Petition is dismissed.
ii) However, it is always open for the petitioner to pursue her remedy already invoked, in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE GSS