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2025 DAILYLAW 26452 (KAR)

MRS. DEESHMA G v. MR.VISHEN VINAY KUMAR

WP/14010/2025 · 2025-05-22

C M Joshi

body2025

Judgment text

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- 1 - NC: 2025:KHC:18348 WP No. 14010 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MAY, 2025 BEFORE THE HON'BLE MR JUSTICE C M JOSHI WRIT PETITION NO. 14010 OF 2025 (GM-FC) BETWEEN: 1. MRS. DEESHMA G D/O GOPALKRISHNAN K AGED ABOUT 31 YEARS R/AT #47 NANDHANAM PUTTARAJU LAYOUT KALKERE VILLAGE BANNARUGHATTA ROAD BANGALORE -560083 …PETITIONER (BY SMT. RASHMI GEORGE,ADVOCATE) AND: 1. MR.VISHEN VINAY KUMAR S/O VINAY KUMAR PK AGED ABOUT 32 YEARS R/AT 3 1086 APPUS DEN BEHIND RAILWAY LINE, ASHOK THEATRE BROTHER'S COLONY CHIKKABANAVARA BANGALORE- 560090 …RESPONDENT (BY SMT. S. SUSHEELA, SENIOR ADVOCATE FOR SRI. S. RAJ PRABHU,ADVOCATE) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER ANNEXURE- A DATED 03.05.2025 IN G & WC NO.42/2025 PENDING ON THE FILE OF 4TH ADDL.SENIOR Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:18348 WP No. 14010 of 2025 CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, RELYING ON THE AFFIDAVIT FILED BY THE RESPODNENT AND PASS ORDERS GRANTING THE INTERIM CUSTODY OF THE CHILD OF 3 YEARS TO THE PETITIONER UNTIL THE IA FOR THE RETURN OF THE CHILD IS ADJUDICATED AND DIRECT THE TRIAL COURT TO CONSIDER THE IA NO.2 FOR THE RETURN OF THE ILLEGALLY DETAINED CHILD EXPEDITIOUSLY IN A TIME BOUND MANNER. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE C M JOSHI ORAL ORDER Heard learned counsel for the petitioner and Smt.S. Susheela, learned Senior counsel for Sri S.Raj Prabhu, learned counsel appearing for respondent. 2. The petitioner is challenging the order passed by the Family Court in G & WC No.42/2025 dated 03.05.2025. In the said order, the Family Court has observed as below: " Petitioner and her Counsel, Respondent and his Counsel are present. Respondent Counsel prays time for objection to main petition and also IA No.II. Meanwhile Respondent has filed affidavit submitting that he has no objection for the Petitioner to visit and meet the child one very Saturday from 5 p.m. to 7 pm in the presence of Respondent at any public places like shopping mall and temple. - 3 - NC: 2025:KHC:18348 WP No. 14010 of 2025 The Petitioner Counsel has objected for the affidavit and submitted that IA No.II may be heard today itself and she is ready to submit hearing on IA No.II since there is urgency to pass the order on IA No.II. It is noticed that IA No.II is filed by the Petitioner seeking for direction to the Respondent to return the custody of minor child who is aged about 3 years, to the Petitioner who is a mother, for the welfare of the child. Meanwhile the Respondent Counsel orally submitted that the Respondent has also filed G and WC Petition which is yet to come on board, seeking for the custody of the child to the father/Respondent. On considering the facts and circumstances of the present case at this stage, it appears to this Court that without hearing both side parties in detail on the IA No.II, an order on merits can not be passed today itself, since there is civil vacation for the court from tomorrow till 31st May 2025. This court pinions that it is just and proper to hear both side parties before passing order on IA No.II. This court also considered that an affidavit is filed by the Respondent before this court, submitting that the father/Respondent has no objection for meeting the child by the mother/Petitioner. However considering the age of the child, this court directs the Respondent to allow and make it convenience for the Petitioner to meet the minor child thrice in a week in alternative days from 10 am to 6pm at any public place or at the Respondent's house or at the child care center in the City Civil Court Complex, Bengaluru in the presence of the Respondent. Call on for objection to the IA No.II and main petition by 02.06.2025. - 4 - NC: 2025:KHC:18348 WP No. 14010 of 2025 3. The learned counsel for the petitioner would submit that the Family Court erred in giving the custody of the child who is aged 03 years to the respondent and fixing the petitioner to meet the child only between 10.00 a.m. to 6.00 p.m. thrice in a week, to the mother who is to be the custodian till the child reaches the age of 05 years. It is submitted that the Family Court without taking note of these aspects has passed the impugned order and therefore, the same needs to be interfered. 4. Per contra, learned Senior Counsel appearing for respondent would submit that, the Family Court in the light of the available material on record, has made an interim arrangement and the IA No.2 as well as the main petition are yet to be decided by it. Ultimately, the petition being under the provisions of the Guardian and Wards Act, and it is the custody of the child and visitation rights which are to be determined by the Family Court on the basis of the material that would be placed before it. Therefore, it is submitted that when the matter is slated - 5 - NC: 2025:KHC:18348 WP No. 14010 of 2025 for hearing on 02.06.2025, there was no need for the petitioner to approach this Court in a hurry and challenge the impugned order of the Family Court. 5. The only question that would arise would be, whether the order passed by the Family Court as above could be justifiable or not? 6. The learned counsel for the petitioner would submit that the custodian of a child who is aged less than 05 years would, ordinarily, be the mother and therefore, the Family Court, oblivious of such proposition of law has given the custody to the respondent/father and allowed the petitioner to visit the child during the day time on alternate days in the week. It is pertinent to note that the Family Court has not yet finally decided the custody of the child. What was available before the Family Court at the time of passing the impugned order was only the affidavit filed by the respondent. 7. Learned counsel for petitioner would also submit that the petitioner has filed a criminal case against - 6 - NC: 2025:KHC:18348 WP No. 14010 of 2025 the respondent in Crime No.119/2025 on Bannerghatta P.S. which was registered under Section 115(2), 3 (5), 85 of BNS Act and Section 66 and 66(D) of the Information Technology Act. It is also submitted that the respondent had snatched the child earlier and in pursuance to it, another complaint was filed by the petitioner about missing of the child. 8. It is pertinent to note that, this Court had an intention to have a conversation with the child and with that intention, the child was asked to keep present before the Court. But however, the child was not present in the forenoon and therefore, that was not possible. 9. It is pertinent to note that the child is of the age of about 03 years. The objections statement filed by respondent and some of the conversation which are alleged to be found in the phone of the petitioner are sought to be kept in safe custody by the learned counsel for the respondent. The veracity of the same is yet to be ascertained. But however, the contents of the same are - 7 - NC: 2025:KHC:18348 WP No. 14010 of 2025 disturbing. It is also relevant to note that the Family Court has not come to the final conclusion about the custody of the child. In the circumstances of the case, that was presented before it, it had passed the above impugned order. Obviously, even the application which was filed for custody of the child in IA No. 2 was not finally decided by the Family Court. 10. In the light of the material which is placed before this Court, this Court is of the view that the decision taken by the Family Court in directing the respondent to make available the child to meet the petitioner 03 days in a week on every alternate days from 10.0 a.m. to 6.00 p.m. do not call for any interference. It is worth to note that the welfare of the child have to be the utmost priority while the Court decide the matter. The Family Court appears to have considered the said aspect and has passed an order on the penultimate day of the commencement of the vacation to the Family Court. In the light of that, the matter needs to be heard fully by the - 8 - NC: 2025:KHC:18348 WP No. 14010 of 2025 Family Court in coming to a conclusion, about the custody of the child. It is pertinent to note that the respondent in his affidavit filed before the Family Court, which is produced at Annexure-G had stated in para 3 as below: "3. I submit that I have no objection in the Petitioner/mother to visit the child Master Adhvaith Vishen on every Saturday from 5 pm to 7 pm in the presence of the Respondent/father at any of the Shopping Malls or Temple most preferably ISKCON Temple or Orion Mall in Rajajinagar as the said places are well connected with Public Transport and also Metro Facility, the said place is also house with ample play area for the child and also creates a positive ambiance for the child to free." 11. The records show that subsequent to the said order being made, an effort was made by the parties to adhere to the said order. But there was some minor altercations between the parties which resulted in approaching this Court. Affinity of the child to the mother or father are because for such minor being in the custody of them for considerable time. Keeping in view the discretion exercised by the Family Court and also in the light of the material which is placed before this Court by - 9 - NC: 2025:KHC:18348 WP No. 14010 of 2025 the petitioner as well as the respondent, it appears that the Family Court while passing an ad interim order, has taken note of the same and such discretion exercised by the Family Court need not be interfered with. However, the final decision either on IA No.2 or on the main petition is yet to come from the Family Court. In the light of the same, the petitioner has not made out any sufficient reasons to interfere with the discretionary order passed by the Family Court and therefore, the petition is bereft of any merits. 12. Before parting, it would be proper to advise the petitioner as well as the respondent to see the welfare of the child as a paramount objective. The parties when quarrelling and making a scene before the child are to adhere to the arrangements made by the Family Court. However, the parties are at liberty to change the venue of their meeting in respect of the visitation rights as ordered by the Family court according to their convenience either in a temple or park. - 10 - NC: 2025:KHC:18348 WP No. 14010 of 2025 13. The Family Court is directed to hear the application in IA No.2 expeditiously, preferably commencing from 02.06.2025 and dispose of the same at the earliest preferably within a couple of weeks from that date. Writ petition is, accordingly disposed of. Sd/- (C M JOSHI) JUDGE tsn* List No.: 1 Sl No.: 142