IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.49834/2019 (GM-FC) BETWEEN:
B. N. YOGESH, S/O. K. S. NANJUNDAIAH, AGED ABOUT 34 YEARS, R/AT 1ST "B" MAIN WKP ROAD, 7TH BLOCK, JAYANAGAR, BANASHANKARI II STAGE, SOUTH BENGALURU, KARNATAKA-560 070.
...PETITIONER (BY SRI A.S. PONNANNA, SENIOR COUNSEL ALONG WITH SRI KAPIL DIXIT, ADVOCATE) AND:
P. BHAVYA, D/O. R. V. PRASAD, #40, 4TH CROSS, AYYAPPA REDDY COLONY, NEAR CHILDREN EDUCATION CENTRE, YESHWANTHPUR, BENGALURU NORTH, BENGALURU-560 022.
…RESPONDENT (BY SMT. PRAMILA NESARGI, SENIOR COUNSEL FOR SRI HEMANTH KUMAR D., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 27.09.2019 PASSED BY THE III ADDITIONAL FAMILY COURT AT BENGALURU IN SO FAR AS I.A. No.14 IS CONCERNED IN G AND WC No.148/2019(ANNEXURE-A) THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner, who is the father of minor children and husband of the respondent is before this against the order dated 27.9.2019 on I.A. No.XIV made in G & WC No.148/2019 allowing the application filed by the respondent – mother and directing the petitioner – father to hand over the custody of two minor children – Sheshashree .Y and Sheshaarchitha .Y to the respondent – wife immediately. In the impugned order, the Family Court also observed that however, the earlier interim order passed by the Family Court on 20.5.2019 shall continue till further orders and the respondent shall send the children to their school without fail till further orders and the petitioner is at liberty to address his arguments on I.A. No.IV for interim custody of two minor children, till disposal of the case.
2. The petitioner – father filed an application under Sections 7, 17 and 25 of the Guardians and Wards Act, 1890 (‘G & W Act’ for short) to declare that he is the permanent guardian of the minor children (Twins) – Sheshashree .Y and Sheshaarchitha .Y born on 31.7.2015, out of the wedlock between the petitioner and the respondent. It is the case of the petitioner – father that the children were all along with him and on 1.5.2019 he was was unwell and had gone for general check-up and at that stage, the respondent – mother without intimating either him or his parents, had taken children to her maternal house. When the petitioner returned back to the house, he was informed by his parents that the respondent forcibly took the children to her maternal house and therefore, he immediately rushed to the maternal house of the respondent to see his children. The respondent knowing that the petitioner visited her parental house, she had locked the minor children in the room and refused to show the children to the petitioner and threatened him with dire consequences if visits again to see the children. Therefore, the petitioner lodged the complaint to the jurisdictional Police. The Police has not taken any action. Therefore, the petitioner filed G & W Petition for the relief sought for.
3. The respondent – wife filed objections to the G & W Petition and resisted the averments made in the said Petition.
4. During the pendency of the G & W Petition, the petitioner – father filed an application under XXXIX Rules 1 & 2 r/w Section 151 of the Code of Civil Procedure to restrain the respondent from obstructing him from taking the minor children to the school on 17.5.2019 and 24.5.2019 for collecting the books & the school uniforms for the academic year and also for restraining the respondent from interfering with the education of the minor children and send the minor children for attending their school from 3rd June 2019 and also for directing the respondent not to intervene with the petitioner in providing proper medical care for the minor children. In the absence of any objections filed by the respondent, the Family Court proceeded to pass the order dated 20.5.2019 restraining the respondent from interfering with the minor children from collecting school uniforms, so also shall not interfere in sending the children to attend the school from 3.6.2019 and accordingly, granted the Temporary Injunction against the respondent subject to compliance by the petitioner under the relevant provisions of the Code of Civil Procedure, till the next date of hearing. Against the said exparte order passed by the Family Court, the respondent filed W.P No.29993/2019 before this Court. This Court by the order dated 20.8.2019 disposed off the writ petition with liberty to the respondent – wife to file an application seeking vacation/modification of the order dated 20.5.2019 passed by the Family Court and directed the Family Court to decide the application within a period of two weeks from the date of filing such application, after hearing the parties.
5. Thereafter, the respondent – wife filed an application – I.A. No.XIV under Section 12 of the G & W Act r/w Section 151 of the Code of Civil Procedure to return the children to her custody, pending disposal of the G & W Petition. The same was opposed by the petitioner by filing the objections. The Family Court considering the application and the objections by the impugned order dated 27.9.2019 allowed I.A. No.XIV with the following directions:
i) The petitioner is directed to hand over the custody of two minor children – Sheshashree .Y and Sheshaarchitha .Y to the respondent immediately.
ii) However, the earlier interim order passed by the Family Court on 20.5.2019 shall continue till further orders.
iii) The respondent shall send the children to their school without fail till further orders.
iv) The petitioner is at liberty to address his arguments on I.A. No.IV for custody of two minor children till disposal of the case.
Hence, the present writ petition is filed for the reliefs sought for.
6. I have heard the learned counsel for the parties to the lis.
7. Sri A.S. Ponnanna, learned senior counsel appearing for the petitioner reiterating the grounds urged in the writ Petition contended that all along the children were with the petitioner - father and on 1.5.2019 when the petitioner had gone for medical check-up, the respondent without intimating the petitioner or his parents, has taken his children to her maternal house. Though the petitioner went to the respondent’s house to see his children, the respondent refused to show the children and threatened him with dire consequences if he visits again to see the children and therefore he lodged a complaint to the jurisdictional Police and subsequently filed the present Petition.
8. He would further contend that the Family Court by the order dated 20.5.2019 restrained the respondent from interfering with the minor children from collecting school uniforms so also attending the school from 3rd June 2019. The said exparte order passed by the Family Court has reached finality since the Writ Petition No.29993/2019 filed against the order dated 20.5.2019 came to be withdrawn with liberty to the respondent – wife to file an application for vacation/modification of the order dated 20.5.2019. When the injunction order granted on 20.5.2019 is still existing, the respondent filed another application for custody of the children. He would further contend that by the impugned order, the Family Court directed to continue the interim order dated 20.5.2019 at one breath and in another breath, directed the petitioner to pursue his application – I.A. No.IV for interim custody of two minor children and in another breath, directed the respondent to send the children to school without fail until further orders and there is no clarity in the order. He further pointed out that the respondent filed an application – I.A. No.XIV seeking modification of the order dated 20.5.2019 seeking re-custody of her two children on 20.9.2019. However, looking to the urgency of the matter, the Family Court proceeded to pass the impugned order, which is contrary to the material on record and therefore the same cannot be sustained and therefore, he sought to allow the writ petition.
9. Per contra, Smt. Pramila Nesargi, learned senior counsel appearing for the respondent sought to justify the impugned order and contended that the main G & W Petition is filed by the petitioner – father for custody of the children. Therefore, the presumption is that the children are with the respondent. Once the children are with the respondent - wife, unless and until the application filed by the petitioner – father for interim custody decided, the petitioner cannot take the children forcibly on the basis of the order dated 20.5.2019 passed by the Family Court. In fact, there was no order passed by the Family Court for handing over the children to the petitioner – father and the order dated 20.5.2019 only restrained the respondent from interfering with the minor children from collecting the school uniforms and attending the classes from 3.6.2019. In the circumstances, the learned Judge on the application – I.A. No.XIV filed by the respondent for return of the children to her custody, rightly passed the impugned order. Therefore, she sought to dismiss the present Writ Petition.
10. Having heard the learned senior counsel for the parties at length and on perusal of the pleadings and the material on record, it clearly depicts that both the petitioner - father and the respondent - mother are not acting as father and mother and they are harassing their children both mentally and physically for their personal ego. It has to be stated that nature has given right to the parents to give birth to a child and take care of the child and parents harassing and torturing the child mentally and physically is highly condemnable and it attracts the provisions of the POCSO Act. In one breath, the petitioner - father says that all along the children were with him and on 1.5.2019 when he had gone for medical check-up, the respondent without intimating the petitioner or his parents, has taken his children to her maternal house forcibly and when he approached the respondent, she refused to show the children to him and threatened him with dire consequences if visits again to see the children. In another breath, the petitioner himself has stated in paragraph-35 of the G & W Petition that minor children are ordinarily residing with the respondent, who comes within the jurisdiction of the Family Court.
11. Thus, there is no consistency in the pleadings of the petitioner. Further, in the application filed by the petitioner for injunction, the prayer sought is for restraining the respondent – wife from obstructing him from taking the minor children to the school on 17.5.2019 and 24.5.2019 for collecting the books and school uniforms and also to restrain the respondent not to interfere with the education of the minor children and send the minor children for attending their school from 3.6.2019 and to direct the respondent not to intervene with the petitioner in providing proper medical care for the minor children. Based on the application, exparte order came to be passed by the Family Court on 20.5.2019 restraining the respondent from interfering with the minor children collecting the school uniforms, so also sending the children to the school from 3rd June 2019. If the respondent – wife aggrieved by the exparte order, it was open for her to file necessary application either for vacating or modification of the order. The same has not been done. Instead of filing the application for modification, she straightaway approached this Court in W.P. No.29993/2019. This Court at the stage of preliminary hearing without notice to the present petitioner – father based on the submission made by the learned counsel for the present respondent – mother, disposed off the petition with liberty to file an application for vacation/modification of the order dated 20.5.2019.
12. When things stood thus, inspite of the liberty given to the respondent to file necessary application for modification of the order dated 20.5.2019, very strangely the respondent - mother filed application under Section 12 of the G & W Act for return of the child to her custody. Both the petitioner – father and the respondent – mother have not come to the Court with clean hands, clean heart and clean mind. The learned Judge, Family Court without knowing the facts of the case properly and without considering the order dated 20.5.2019 passed by this Court in Writ Petition No.29993/2019, wherein liberty was reserved to the respondent – wife to file necessary application for modification/vacation of the order dated 20.5.2019, proceeded to pass the impugned order stated supra giving four directions and there is no clarity in the impugned order. The learned Judge ought to have applied his mind to the pleadings, objections and the documents produced and ought to have passed the reasoned order in accordance with the provisions of the G & W Act, taking into account the paramount interest of the children ignoring the personal ego between the father and the mother. The same has not been done. In the circumstances, the impugned order passed by the Family Court giving four directions cannot be sustained.
13. For the reasons stated above, the writ petition is allowed. The impugned order dated 27.9.2019 passed by the Family Court is set aside. The Family Court is directed to consider the application – I.A. No.IV filed by the petitioner - husband for interim custody of two minor children and the application filed I.A. No.XIV filed by the respondent – wife under section 12 of the G & W Act for return of the children to her custody, after hearing both the parties and pass orders on the said applications afresh within a period of one month from the date of receipt of the order subject to cooperation from the parties to the lis.
14. This Court hopes and trusts that both the petitioner – father and the respondent - mother will cooperate with the Court to decide the applications within one month, taking into account the paramount interest of the children.
15. All the contentions raised by the learned counsel for the parties are kept open. Any observations made by this Court in the present writ petition so also the observations made by the Family Court in the earlier order dated 20.5.2019 and also in the impugned order dated 27.9.2019, shall not influence the learned Judge and he shall pass orders on I.A. No.IV filed by the petitioner – husband and I.A. No.XIV filed by the respondent – wife strictly in accordance with law.
Sd/-
JUDGE Gss/-