1/5 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 28th DAY OF JULY 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION Nos.14121/2017 & 15648/2017 (GM-FC) BETWEEN:
KIRAN KUTTAPPA S/O SRI. JOYAPPA, 32 YEARS R/AT. No.310, 7TH C MAIN 1ST BLOCK, HRBR LAYOUT KALYAN NAGAR, BANGALORE-43.
(BY SRI. KARUMBAIAH T.A. ADV.,) AND:
RAKSHITHA AIYAPPA W/O KIRAN KUTTAPPA D/O T.M. AIYAPPA, 30 YEARS R/AT. No.6, SHIVA SHAKTHI NILAYA R.T. NAGAR, BANGALORE-32.
(BY SRI. PRABHUGOUD B. THUMBIGI, FOR SMT. RACHITA NANAIAH M, ADV.,) ... PETITIONER ... RESPONDENT THESE W.Ps. ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH ANNEXURE-S THE ORDER DT.16-03- 2017 PASSED BY THE VI ADDL. PRINCIPAL JUDGE FAMILY Court, BANGALORE ON I.A. FILED BY THE RESPONDENT UNDER SECTION 151 OF CPC ON 16-03-2017 IN M.C. No.2433/15 INSOAFR AS IT RELATED TO KEEPING THE ORDER DT.17-08-2016 PASSED ON APPLICATION U/S. 26 OF HINDU MARRIAGE ACT IN ABEYANCE UNTIL FURTHER ORDER IS CONCERNED.
THESE W.Ps. COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.T.A.Karumbaiah, Adv. for Petitioner Mr.Prabhugoud B.Thumbigi, Adv. for Respondent 1. The petitioner-husband has filed this petition being aggrieved by the order passed by the learned Court below 6th Addl. Family Court, Bangalore, on 16.03.2017, whereby, the previous order passed by the same Court on 17.08.2016 giving the visitation rights to the petitioner-father were stopped.
2. The operative portion of the earlier order dated 17.08.2016 is quoted below for ready reference:-
“The petitioner is hereby directed to hand over the custody of the minor child to the respondent nearest to her house on every Sunday at 11 a.m. to exercise visitation rights. After exercising visitation rights, the petitioner is hereby directed to hand over the custody of the child to the respondent at 4 p.m. without fail.
For further evidence of P.W.1 by 07.09.2016”.
The operative portion of the impugned order dated 16.03.2017 is quoted before for ready reference:-
“ ORDER Applications filed by the petitioner u/S.151 CPC are hereby partly allowed.
It is hereby directed to the jurisdictional Hebbal Police to take over the child Master Ridh Ponnanna from the hands of the respondent and hand over to the petitioner immediately.
The order passed on 17.08.2016 by this Court u/S 26 of the Hindu Marriage Act, is hereby kept in abeyance till further order”.
3. The learned counsel for the petitioner-father Mr.T.A.Karumbaiah submitted that on one occasion due to the house warming ceremony of parents of the petitioner’s father, he sent a message to the Respondent-wife, who was away to Dubai for long time, to allow him to take away the child Master Ridh Ponnanna, aged about 2½ years to his parental house for the said ceremony for two weeks and will return the custody of the child to the Respondent-wife or her parents who are living in Bangalore and in whose custody, she left the child when she went to Dubai. Taking umbrage of the same, the Respondent-wife filed an application under Section 151 of CPC and on that application, the impugned order is passed by the Court below on 16.03.2017.
4. The learned counsel for the petitioner-husband prays that the earlier order dated 17.08.2016 be restored, subject to the same conditions imposed in the said order and he would abide by the said terms and conditions of the same and his visitation rights may be restored for limited period on Sundays from 11 a.m. to 4 p.m., which is natural right of meeting his son, irrespective of the matrimonial discard.
5. The learned counsel for the Respondent Mr.Prabhugoud Thumbagi opposes this submission and has urged that on more than one occasion, the terms and conditions in the previous order have been violated by the petitioner-husband and therefore, the impugned order dated 16.03.2017 is justified.
6. Having heard the learned counsels for the parties, this Court is satisfied that the petitioner is entitled to the relief as prayed in the present writ petition and the previous order dated 17.08.2016 deserves to be restored. The same is accordingly restored and the same may continue till the conclusion of the M.C.No.2433/2015 (Mrs.Rakshitha Aiyappa vs. Mr.Kiran Kuttappa), regarding the custody of the said minor child. The impugned order dated 16.03.2017 therefore, shall remain stayed and inoperative till the conclusion of the said trial.
7. The petition is accordingly disposed of. No costs.
Srl.
Sd/- JUDGE