IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.27207/2016 (GM-FC) BETWEEN:
L. DEVANAND @ MANJU S/O T.H. VENKAPPA AGE: 45 YEARS R/O 39, MOUNT JOY ROAD HANUMANTHANAGAR BANGALORE – 19 …PETITIONER (BY SRI.VIKAS M, ADV. FOR SRI. SACHIN B.S., ADV.) AND:
SMT. G.R. SUNITHA W/O DEVANAND @ MANJU D/O G.S. RAMAIAH (ASSISTANT AGRICULTURAL OFFICER) AGED ABOUT 31 YEARS KUVEMPUNAGAR, KUNIGAL (SRI.Y.K.RAMAIAH ROAD) KUNIGAL TALUK – 572 130 TUMKUR DISTRICT …RESPONDENT (BY SRI. S. NAGARAJ, ADV.,) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 08.01.2016 VIDE ANNEXURE – A ON IA NO.5 IN MC NO.1661 OF 2013 ON THE FILE OF PRINCIPAL FAMILY JUDGE AT BENGALURU TO THE EXTENT OF DISALLOWING THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 151 OF CPC THAT IS IA NO.5 AS PRAYED FOR IN THE PETITION AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court assailing the order dated 08.01.2016 passed on I.A.No.5 in M.C.No.1661/2013 as at Annexure-A to the petition.
2. The petitioner and the respondent are litigating with regard to their matrimonial disputes in M.C.No.1661/2013. In the said proceedings, the petitioner herein had filed an application in I.A.No.5 seeking custody of the children born through the wedlock. The Court below, on taking note of the rival contentions has allowed the application in part and granted the visitation right of the minor child at the place where they were residing at that time namely, with the respondent herein. The visitation was to be exercised on the first and third Saturdays and Sundays during the time as indicated therein. The petitioner contending that the custody as sought by the petitioner was necessary to be granted, has filed the instant petition.
3. In the process of consideration of this petition, in order to enable that before any other larger benefit is granted to the petitioner, the visitation as ordered to be exercised in an appropriate manner, this Court, through the order dated 23.02.2017, on taking note of the apprehension of the petitioner that he will not be in a position to exercise the visitation right in the house of the respondent had ordered that the visitation be enjoyed on the first and third Saturdays of the month between 11.00 a.m. to 1.00 p.m. at the Bengaluru Mediation Centre. Since, in that circumstance, the respondent was required to travel from her home town to Bangalore and would incur expenses and further since, the respondent had made out a grievance with regard to the maintenance as ordered not being paid, a direction was issued that the modified visitation right as granted by this Court through the interim order would be available to the petitioner, only if the maintenance is paid.
4. In the above background, when the petition is taken up for consideration today, on hearing the learned counsel, it is seen that there is no serious dispute to the fact that as on today, the maintenance has not been paid by the petitioner and in that circumstance, the visitation as ordered has not been availed by the petitioner, though the respondent was willing to bring the child to the Bengaluru Mediation Centre, if the maintenance and expense was paid.
5. In that circumstance, when the very visitation as modified by this Court has not been availed by the petitioner by complying with the order passed by this Court, any consideration with regard to the order passed by the Court below to grant custody of the minor child to the petitioner would not arise that too, when the Court below has granted the relief in part towards the visitation rights. Hence, I am of the opinion that the order dated 08.01.2016 impugned in this petition does not call for interference in the above background.
The petition is accordingly disposed of.
Sd/- JUDGE ST