Karnataka High Court
Mr Noor Ali vs Mrs. Sama Adil on 20 February, 2025
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2025:KHC:7801
WP No. 14996 of 2024
C/W WP No. 18705 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.14996 OF 2024 (GM-FC)
C/W
WRIT PETITION NO.18705 OF 2024 (GM-FC)
IN WP.No.14996/2024:
BETWEEN:
MR.NOOR ALI
S/O.MR.ISHAQ OOMER SAHEB
AGED ABOUT 43 YEARS
R/AT FLAT NO.2, ISPAHANI
HOUSE NO.3, MYRTLE LANE
RICHMOND TOWN
BENGALURU-560 025
...PETITIONER
(BY SRI VIREN MICHAEL PERES, ADVOCATE)
AND:
MRS.SAMA ADIL
W/O.MR.NOOR ALI
AGED ABOUT 41 YEARS
Digitally signed R/AT NO.305
by
GAVRIBIDANUR PRESTIGE SILVER OAK
SUBRAMANYA ECC ROAD, WHITEFIELD
GUPTA
SREENATH BENGALURU-560 066
Location: High ...RESPONDENT
Court of
Karnataka (BY SRI IAN ISIDORE PRAKASH LEWIS, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
COMMON ORDER DATED 27.04.2024 PASSED ON IA.NOS.IV &
V IN G & WC.NO.53/2021 BY II ADDITIONAL SENIOR CIVIL
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NC: 2025:KHC:7801
WP No. 14996 of 2024
C/W WP No. 18705 of 2024
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU VIDE
ANNEXURE-A.
IN WP NO.18705/2024:
BETWEEN:
SAMA ADIL
D/O.SAR ADIL
AGED ABOUT 41 YEARS
R/AT NO.305
PRESTIGE SILVER OAK
ECC ROAD, WHITEFIELD
BENGALURU-560 066
...PETITIONER
(BY SRI IAN ISIDORE PRAKASH LEWIS, ADVOCATE)
AND:
NOOR ALI
S/O.ISHAG OOMER
AGED ABOUT 43 YEARS
R/AT NO.2, ISPAHANI HOUSE
NO.3, MYRTLE LANE
RICHMOND TOWN
BENGALURU-560 025
... RESPONDENT
(BY SRI VIREN MICHAEL PERES, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
COMMON ORDER DATED 27.04.2024 PASSED ON IA.NO.VI IN
G & WC.NO.53/2021 BY II ADDITIONAL SENIOR CIVIL JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU VIDE
ANNEXURE-A.
THESE WRIT PETITIONS ARE COMING ON FOR
PRELIMINARY HERAING IN 'B' GROUP, THIS DAY, ORDER WAS
MADE THEREIN AS UNDER:
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NC: 2025:KHC:7801
WP No. 14996 of 2024
C/W WP No. 18705 of 2024
CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR
ORAL ORDER
These writ petitions are filed by the father and the mother of a minor child Abaan Ali questioning the orders passed on IA.Nos.IV, V and VI in G & WC.No.53/2021 by II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.
2. Essentially, three applications in IA.Nos.IV and V came to be filed by the father and IA.No.VI by the mother of the minor child in G & WC.No.53/2021 before II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.
3. The father filed IA.No.IV seeking the following prayers:
"a) speak to his minor son every day between 3 pm and 4 pm on video call
b) Grant the petitioner Overnight access to his son by picking him up on every Saturday morning at 10 am and dropping him back -4- NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 to the Respondents house on Sunday by 6 pm
c) 50% interim custody / residence rights to the Petitioner father during all School Holidays and Vacations either in the first half or second half."
3.1 The father filed IA.No.V seeking the following prayer:
"xxxxxxx to direct that the minor child's school be changed from the current institution i.e. "Deens Academy Whitefield"
to "Greenwood High International School Sarjapur Road" or in the alternative to any other neutral school as prayed for in the affidavit in the interest of justice and equity"
3.2 The mother filed IA.No.VI seeking the following prayer:
"xxxxxxx to direct that the Petitioner-
father to pay a sum of Rs.1,00,000 (Rupees one lakh) every month to the Respondent-mother towards maintenance of the minor Abaan Ali, until the minor -5- NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 attains majority in the interest of equity and justice."
4. When such being the case, on hearing both parties, learned II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru rejected all the applications.
5. Aggrieved by the common impugned order, both parties are before this Court in these petitions challenging the same.
6. As can be seen from the facts narrated by both parties in these petitions and the affidavits filed by both parties, who are none other than the husband and wife, father and mother of the minor child namely, Abaan Ali, who is aged about 8½ years and is presently studying in the Deens Academy, Whitefield. It is apparently seen that the father and mother are at loggerheads and the petition has been instituted for custody and visitation of the minor child. Now, this Court shall consider the aforementioned applications i.e. IA.Nos.IV, V and VI. -6-
NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 IN IA.NO.IV:
7. Firstly, coming to IA.No.IV filed for modification of the order dated 09.03.2022 instituted by the father, there is already an interim order passed by the Court providing visitation rights to the father on every Sunday i.e. from 10:00 a.m. to 6:00 p.m., which is exercised by the father.
7.1 Learned counsel for father has relied on several judgements in support of his case and canvassed his arguments for shared parenting and equal rights being provided to the father to visit the minor child for welfare, growth and development of the minor child and contends that there should not be alienation of the father during the period of formative growth of the child. He has relied on the following judgments:
i) Savitha Seetharam v. Raji Vijayasarathy Rathnam reported in 2020 SCC OnLine Kar 2747;
ii) Smt.Jyoti Priya vs. Shri Paul Goodwin J.
reported in ILR 2021 KAR 4894;
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 7.2 It is the contention of learned counsel for father that the child is being alienated and the father has not been given access and overnight stay with the minor child to take care of him and also during the vacations, 50% is not ordered, thereby he is deprived of the custody and visitation rights, which also equally applies to his parents i.e. the grandparents and relatives of the minor child. Therefore, the father has come up with this application seeking modification of the order passed by II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.
7.3 Per contra, learned counsel for mother vehemently objects to the submissions put-forth by learned counsel for father, to contend that the child is aged about 8½ years as of now and he has been in continuous care and custody of the mother; he has adjusted well and emotionally attached to the mother; he has been going to the Deens Academy, where the mother is a staff (as Counsellor) and she is able to take care the welfare and wellbeing of the minor child and to give -8- NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 constant care and attention towards the minor child. He further contends that the father has not been diligent father; he has been aggressive and in fact, dangerous to the welfare and growth of the minor child. On these grounds, he contends that it may not be in the welfare of the minor child to grant overnight access or stay with the father as it would be detrimental to the interest of the minor child. Therefore, it is contended by learned counsel for mother that the day visitation rights, which is already given to the father could be exercised and the mother could not have any objections to the same. It is also contended by learned counsel that the grant of 50% custody rights would again be detrimental to the interest of the minor child and he opposes the same. In IA.No.V:
8. The application in IA.No.V is filed by the father for changing of the School from Deens Academy, Whitefield to the Greenwood High International School, Sarjapur Road or in the alternative, to any other neutral School. -9-
NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 8.1 It is the vehement contention of learned counsel for father that the change of School from the Deens Academy to any other school would be better, as the father is not provided access to the child; there is no follow up information given by the School, so also, the father is not allowed to enter the School; even if he is asked to come, he is not provided any information and proper report or status of the child in the School; the father is not allowed to participate in the activities of the child, so also, to attend the Parent Teacher Meeting. If any application or request is made to the School authorities, the same is not replied; the School is being run by the relative of the mother, hence, they act more detrimental to the interest of the father with deliberate intention to deprive the father meeting the child or having access to the School and co-curricular activities of the child. On these grounds, he contends that in the interest of the child, if he is shifted from the present School to either Greenwood High International School, Sarjapur Road or any other neutral School, the father can have easy access
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 and visitation and also can get the information with regard to reports and status of the child and participate in all activities of the child in the School, for which, he is presently prohibited and unable to access.
8.2 Per contra, learned counsel for mother vehemently contends that no doubt, the School is being run by the relative of the mother, the child is very happy and doing well in the present School and the owners/ management being related to the mother can take care of the safety and security of the child. It is also contended that since the mother is a Counsellor in the said School, she is in a better position to take care of the interest of the minor child; the School is located very nearby to the residence of the mother. It is also contended by learned counsel that all the activities of the child are monitored by the mother and the School, which is being run by the relative of the mother, thereby the child's rights are protected, so also, the safety and security. It is also contended by learned counsel for mother that the father is
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 blowing hot and cold by stating that he wants to shift the child to the Greenwood High International School, Sarjapur Road, which is at a distance of 15 to 17 kilometres from the residence of each father and the mother and the same would cause severe harassment and torture for the child to get up early in the morning and go to School. Therefore, it would not be conducive or convenient, it would rather cause more difficulty in commuting to the School to and fro.
8.3 It is also contended by learned counsel for mother that at one stretch, the father wants the child to be shifted from Deens Academy, Whitefield to the Greenwood High International School, Sarjapur Road, wherein the School fee is exorbitantly high. On the other hand, for the application filed by the mother seeking maintenance, the father states that he does not have any source of income to pay her the maintenance. Therefore, the statement of the father runs contrary to his own affidavit and the documents produced that he is not
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 capable of maintaining the child because of not having sufficient income. On these grounds, he seeks dismissal of this application as the School presently being attended to by the minor child is very good for him as the mother, who is an employee in the said School, is constantly taking care of the child.
In IA.No.VI
9. The application in IA.No.VI is filed by the mother seeking to direct the father to pay a sum of Rs.1,00,000/- per month towards maintenance of the minor child, Abaan Ali, until the child attains majority. In the affidavit filed, a detailed description is made with regard to the expenses incurred for the minor child namely, School Fee, Miscellaneous School expenses, Islamic Studies Classes, Football-Barca Academy, Martial Arts, Sports, Music, Art, Dance, Medical, Dental and Vaccinations, Food, Clothes, Shoes, Books, Savings and miscellaneous. In all, total expenditure comes around to Rs.76,233/- per month.
9.1 Learned counsel for mother seriously contends that the general expenses mentioned hereinabove are
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 meted out only for the minor child, excluding the expenses of the mother. As the mother herself is working in said School, she has not claimed any maintenance. However, she seeks maintenance for the minor child.
9.2 Learned counsel for father seriously disputing the said expenses, contended that he partially agrees with some of the expenses but not all. He disputes the expenses of Martial Arts, Sports, Swimming, Art, Music, Dance classes, Medical, Dental and Vaccinations, as he has already taken Insurance and Healthcare for medical expenses for the child. On these grounds, the expenses of the child may come roughly around to Rs.40,000/- and he would be agreeable to pay around Rs.20,000/- to Rs.21,000/- per month for the welfare of the child as he is also interested in taking care of the welfare of the child but not liable to pay the maintenance for the mother.
10. I have heard learned counsel for father and learned counsel for mother on all the applications.
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024
11. Coming to the application in IA.No.IV filed by the father, what is required to be seen at this point is what would be the best interest of the minor child while granting custody and visitation rights in a custody petition filed by either of the spouse. In the present facts and circumstances of the case, the minor child, Abaan Ali is aged about 8½ years, this Court has interacted with the minor child prior to deciding this application.On interaction, the child appeared to be very attentive and smart; he is aware of the facts of the case; Abaan is good in his education and he is very interested and focused in the sports more specifically, football. The minor child, per se, did not have any apprehension or aversion to go with the father and spend time with him. Nevertheless, he had liking towards the mother since she has been taking care of him.
11.1 On careful interaction with the minor child, this Court deems it appropriate the minor child's overnight access deserves to be given to the father in order to see
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 that there is continuous regular interaction with the child and for proper growth, development and welfare of the minor child. It is also necessary to see that there is no parental alienation towards the minor child. The judgments relied on by learned counsel also provide similar line of directions and guidelines, which direct the Courts to provide reasonable custody and visitation rights to both spouses, so that they can have access to the child and there is no alienation of the father or the mother.
11.2 The Division Bench of this Court in the case of Savitha Seetharam stated supra, has held at paras-25, 26 and 28 as under:
"25. We have referred to the principle of shared parenting which is defined to include shared parenting authority as well as shared parenting responsibility in the day-to-day upbringing and welfare of the children, as it has evolved over the decades, in the context of custody of minor children. The Hon'ble Supreme Court in a catena of decisions has held that in dealing with the matter concerning a minor, the Court has a special responsibility and it is the
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 duty of the Court to consider the welfare of the minor and to protect the minor's interest. Over a period of time, the concepts of custody and visitation rights have transformed themselves into the responsibility of parents towards children. A central theme of this transformation is the emphasis on parental responsibility which requires that the child should be treated as an individual having his or her own capabilities and limitations as well as independent opinions. A child is not an appendage of his parents. The focus of attention must actually be on the child.
26. The United Nations Convention on the Rights of the Child, 1989, has emphasized that a child should not be separated from his or her parents against his or her will except when competent authorities, subject to judicial review, determine in accordance with applicable law and procedures, that such separation is necessary in the best interests of the child. The principle of best interest of the child is also a variable principle inasmuch as what is in the best interest of the child in one case may not be so in another case. Each case must be looked at individually by focusing on the special facts and circumstances so as to envisage the pros and cons while
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 passing an order on the custody of the child. Article 12 of the said Convention clearly states that the views of the child who is capable of forming his or her own views must be given due weightage in accordance with age and maturity of the child by the court and other authorities. The parents or, as the case may be, the legal guardians have a primary responsibility for the upbringing and development of the child for, the best interest of the child must be their basic concern. In this regard, we have referred to the concepts of joint legal custody and joint physical custody in various over-seas jurisprudence and we find that joint physical custody is a species of joint legal custody inasmuch as the goal must be to encourage shared and co-operative parenting after the separation of parents, bearing in mind the best interests of the child which is the paramount consideration. Thus, the welfare principles which are in the interest of the child, assume importance. Therefore, prior to passing of the decree of divorce, it is necessary to seek a parenting plan post-divorce from the parties themselves. In this regard, we have also referred to the report of the Law Commission on adopting the shared parenting system in India where
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 equal legal status of both parents with respect to guardianship and custody is emphasized. The Law Commission Report also highlights the factors to be considered for the best interest standards, which we have extracted and also determined the preference of the child.
27. xxxxxxxxxxxxx
28. This Court in K.M.Vinaya vs. B.R.Srinivas, [2013 SCC Online Kar 8269], (K.M.Vinaya) modified in [(2015) 16 SCC 405], held that both the parents are entitled to get custody for the sustainable growth of the minor child and the following directions were issued:
(i) "The minor child was directed to be with the father from 1st January to 30th June and with the mother from 1st July to 31st December of every year.
(ii) The parents were directed to share equally, the education and other expenditures of the child.
(iii) Each parent was given visitation rights on Saturdays and Sundays when the child is living with the other parent.
(iv) The child was to be allowed to use telephone or video conferencing with each parent while living with the other."
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 11.3 Under the circumstances, the application in IA.No.IV is partly allowed.
(a) The father is permitted to speak to the minor child through audio/video calls every alternate days between 3:00 p.m. and 3:20 p.m. or between 4:10 p.m. and 4:30 p.m.
(b) The father is granted overnight access of the minor child on every 1st and 3rd Saturday and Sunday and he shall pick up the child from the house of the mother on Saturday at 10:00 a.m. and drop him back to the house of the mother on Sunday at 6:00 p.m.
(c) The father shall have the custody of the child in the Summer, Winter and other School Vacations on 50% equal sharing basis. With regard to the Eid and Ramadan, which comes once in a year, each of the party shall have access of Eid at one time and Ramadan on the other time and the same shall be shared alternatively by both the parties.
12. Coming to the application in IA.No.V filed by the father for the change of School from Deens Academy,
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 Whitefield to Greenwood High School International School, Sarjapur Road, considering the submissions of learned counsels for parties and the fact that the minor child is attending to Deens Academy, Whitefield, where the mother herself is a Counsellor, this Court deems it appropriate that as already the child is taken care by the mother constantly and the relative of the mother, who is running the School is monitoring the child's activities, the child would be safe and secure in the present School for the time being, until further orders are passed by the Family Court on any application preferred by the parties, if any such situation or eventuality arises. Therefore, it would be appropriate for the minor child to study in the present School i.e. Deens Academy, Whitefield, which is closer to the house of the mother and where the mother herself is a Counsellor. Under the circumstance, this Court is not inclined to accept the submissions of learned counsel for father to change the School of the minor child from Deens Academy, Whitefield to the Greenwood High
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 International School, Sarjapur Road. Accordingly, IA.No.V is dismissed.
13. Coming to the application in IA.No.VI filed by the mother for maintenance amount of Rs.1,00,000/- per month for the minor child from the father, she has filed the details of expenditure meted out for the minor child in her affidavit accompanied to the application. On careful perusal of the same, it is seen that roughly the total expenditure comes around to Rs.76,233/-, out of which, around Rs.45,000/- is accepted by learned counsel for father and the others are disputed. Under the circumstances, the Tuition Fee, Miscellaneous School expenses, Islamic Studies, Football Academy, Food, Clothes, Nourishment and other miscellaneous expenditure comes around to Rs.22,000/-, which would be 50% of father's contribution. Therefore, this Court deems it appropriate to direct the father to pay an interim maintenance of Rs.25,000/- per month to the minor child, which shall be remitted directly to the School or to the
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 account of the mother. Accordingly, IA.No.VI is partly allowed.
14. In view of the discussions made hereinabove, I pass the following:
ORDER
i) These petitions are disposed off in the following manner as mentioned hereinbelow:
a) The impugned orders dated 27.04.2024 passed on IA.Nos.IV and VI in G & WC.No.53/2021 by II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru are set aside;
b) The impugned order dated 27.04.2024 passed on IA.No.V in G & WC.No.53/2021 by II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru is sustained;
c) The father is permitted to speak to the minor child through audio/video calls on every alternate days between 3:00 p.m. and 3:20 p.m. or between 4:10 p.m. and 4:30 p.m.;
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024
d) The father is granted overnight access of the minor child on every 1st and 3rd Saturday and Sunday and he shall pick up the child from the house of the mother on Saturday at 10:00 a.m. and drop him back to the house of the mother on Sunday at 6:00 p.m.;
e) The father shall have the custody of the child in the Summer, Winter and other School Vacations on 50% equal sharing basis. With regard to the Eid and Ramadan, which comes once in a year, each of the party shall have access of Eid at one time and Ramadan on the other time and the same shall be shared alternatively by both the parties;
f) The father shall transfer a sum of Rs.25,000/- per month towards maintenance of the minor child, directly to the School or to the account of the mother;
g) The parties are restrained from making allegations against the other before the child or
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 in anyway prejudice or create a bias in the mind of the child against the other parent;
h) The parents must ensure that the child does not in any way feel uneasy or have discomfort when the child is residing within one of the parents or while he is visiting the other parent. A great responsibility is cast on both the parents to ensure this.
w It is made clear that the School i.e. the Deens Academy presently the child is attending to, shall communicate all information with regard to child's report cards, Parent Teacher Meeting to the father on monthly basis and inviting the father to the Parent Teacher Meeting, if it is physically conducted and if it is online by providing the log-in access to the father including the mother.
It is also made clear that the father shall not unnecessarily go to the School without prior appointment
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NC: 2025:KHC:7801 WP No. 14996 of 2024 C/W WP No. 18705 of 2024 and create any untoward incident of embarrassment to the minor child or to the mother, who is a Staff in the School.
Additionally, the father shall have visitation rights on 2nd and 4th Sunday between 2.00 p.m. and 4.00 p.m. Ordered accordingly.
Sd/-
(PRADEEP SINGH YERUR) JUDGE LB List No.: 1 Sl No.: 19