IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.24997 OF 2019 (GM-FC) BETWEEN:
MR DEBOJYOTI DAS S/O SHRI DIPESH RANJAN DAS AGED ABOUT 43 YEARS R/A 403 FESTOON PRIMROSE APARTMENTS 5BC 950 2ND BLOCK HRBR LAYOUT EXTENSION (OFF: BABUSAPLAYA) BANGALORE – 560 043 (By MR. SUNIL S CHOUDHARI, ADV.) AND:
MRS VISHAKHA DAS W/O MR DEBOJYOTHI DAS AGED ABOUT 40 YEARS B-904 PLAMA HEIGHTS APARTMENTS 230 HENNUR MAIN ROAD BESIDE MANDOVI MOTORS OPP: JAIN HEIGHTS BANGALORE – 560 043 (By MR. H V PRAVEEN GOWDA, ADV.) - - -
… PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 08.02.2019 PASSED BY THE HON'BLE PRINCIPAL JUDGE, FAMILY COURT BANGALORE VIDE ANNX-B, PAGE NO.84-85, IN MC 4746/2015 C/W G & WC 127/2017, FOR THE WELFARE OF THE MINOR CHILD; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Sunil S.Choudhari, learned counsel for the petitioner.
Mr.H.V.Praveen Gowda, learned counsel for the respondent.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 08.02.2019 passed by the Family Court by which the Family Court has handed over the custody of the child namely Aarav who is aged about 10 years to the mother and has granted visitation rights to the father namely the petitioner.
4. Facts giving rise to the filing of the petition briefly stated are that respondent has filed a petition under Section 36 of the Special Marriage Act, 1954 seeking dissolution of the marriage which has been registered as M.C.No.4746/2015. The father, namely the petitioner has filed a proceeding under the Guardian and Wards Act, 1890 which has been registered as G and WC No.127/2017. In the proceeding initiated by the respondent – wife under the Special Marriage Act, the Family Court passed an order dated 29.10.2015 by which the petitioner namely the father was restrained from interfering with the custody of the minor child with the mother but was granted the visitation rights. During the week ends, the petitioner who is the father of the child used to take the custody of the child. It is the case of the respondent that on 03.02.2019, the custody of the child was given to the petitioner and his custody was supposed to be handed over to the respondent, however the petitioner did not handover the custody of the child. Thereupon, the Family Court, by an order dated 07.02.2019, directed the custody of the child to be handed over to the respondent – mother with a direction to produce the child on 08.02.2019.
5. In pursuance of the aforesaid order when the child was produced on 08.02.2019, the child namely Aarav expressed his desire to stay with the petitioner – father. However, the Family Court, by impugned order dated 08.02.2019, has handed over the custody of the child namely Aarav to the respondent – mother contrary to the wish of the minor child. In the aforesaid factual background, the petitioner has approached this Court.
6. I have heard the learned counsel for the parties at length. It is evident that a Bench of this Court had passed an interim order on 14.06.2019. It is not in dispute that the child is residing with the petitioner – father since 14.05.2019 and the respondent – wife has been exercising visitation rights. The child is aged about 10 years and is a student of class V. It is also brought to the notice of the Court that in G and W.C. proceeding namely case No.127/2017, the petitioner – father has filed an application seeking interim custody of the child which is pending before the Family Court.
7. In view of the aforesaid submissions and taking into account the fact that the child is staying with the petitioner – father since 14.05.2019 and the interim order passed by this Court is operating since 14.06.2019 as well as the fact that the application seeking interim custody filed by the petitioner is pending consideration before the Family Court, I deem it appropriate to dispose of this petition with a direction to the Family Court to decide the application for interim custody of the child filed by the petitioner by a speaking order after affording an opportunity of hearing to the parties within three weeks from the date of receipt of certified copy of the order passed today. Till the application filed by petitioner seeking interim custody is decided, interim arrangement with regard to the visitation rights made by this Court from time to time shall also continue.
8. At this stage, learned counsel for the respondent submitted that respondent – mother be allowed to speak to the child between 6 p.m. to 10 p.m. on telephone. To the aforesaid prayer, learned counsel for the petitioner has submitted that he has no objection. As agreed to by the learned counsel for the parties, the respondent is permitted to speak to the child on telephone between 6 p.m. to 10 p.m. everyday.
9. At this stage, the attention of the Family Court is invited to the Karnataka (Case Flow Management in Sub-ordinate Courts) Rules, 2005 which provides that the Family Court must decide the proceeding expeditiously preferably within one year. The petition seeking dissolution of marriage is pending since 2015 and the proceeding in G and WC is pending since 2017. Therefore, the Family Court shall make an endeavour to dispose of the proceeding in view of the provisions contained in the aforesaid Rules, expeditiously.
It is made clear that this Court has not expressed any opinion on the merits.
Sd/- JUDGE RV