IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY 2019 BEFORE THE HON'BLE Mr. JUSTICE B.VEERAPPA WRIT PETITION NO.49237/2017(GM-FC) Between:
M.P. Deepa, W/o. Atul Ghosh, D/o. M.S.P. Gowda, Aged about 38 years, R/at. 1-B, 1st Floor, Harvel Domicil, Kadubeesanahalli, Behind New Horizon School, Panathur, Bengaluru – 560 103.
(By Sri. Arun Govindaraj, Advocate for Sri. Govindaraju L, Advocate) And:
S. Venkatesh, S/o. Srinivasa Rao, Aged about 48 years, R/at. No.501, D Block, Platinum City, HMT Watch Factory Road, Bengaluru – 560 022.
... Petitioner ... Respondent (By Smt. Bhushani Kumar, Advocate for C/Respondent) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order passed on 06.10.2017 on I.A. No.2 in G & WC No.38/2017 by the I Additional Principal Judge, Family Court, Bengaluru in so far as it does not allow the application as sought for vide Annexure – F.
This petition coming on for Orders, this day, the Court made the following:-
O R D E R The present petitioner has filed G & WC No.38/2017 for alteration of the order passed by the Family Court in G & WC No.11/2015 in terms of the compromise entered into between the parties.
2. The respondent has filed objections to the said petition and during the pendency of the said petition, the petitioner has filed I.A. No.2 staying the visitation rights granted to the respondent reiterating the averments made in the petition. The said application was opposed by the respondent by filing objections. The Family Court considering the application and objections, passed the impugned order dated 06.10.2017 in G & WC No.38/2017 and allowed I.A. No.2 in part and modified the visitation rights granted to the respondent and permitted the respondent to visit minor child on the last Saturday and Sunday of every month till disposal of the matter. Hence, the writ petition is filed by the petitioner.
3. I have heard the learned counsel for both the parties to the lis.
4. Sri. Arun Govindaraj, learned counsel for the petitioner contended that the impugned order passed by the family Court granting visitation rights to the respondent on last Saturday and Sunday of every month is erroneous and contrary to the materials on record and is liable to be quashed. He further contended that in spite of the compromise entered into between the parties, the respondent has violated the conditions of the compromise and the minor child is reluctant to visit her father. Therefore, the trial Court was not justified in giving the visitation rights to the respondent on last Saturday and Sunday of every month. It is further contended that the I Additional Principal Judge, Family Court has erred in not modifying the visitation rights of the respondent during vacations and festivals. Therefore, he sought to allow the writ petition.
5. Per contra, Smt. Bhushani Kumar, learned counsel for the respondent sought to justify the impugned order and contended that the very main petition filed to modify the order passed on 02.05.2015 in G & WC No.11/2015 by the Family Court in terms of the Family Court is not maintainable. Therefore, the Family Court is justified in passing the impugned order. It is further contended that there is no dispute that the minor child born out of the wedlock between the petitioner and respondent. Therefore, both are entitled for equal visitation rights on the minor child. Therefore, sought to dismiss the writ petition.
6. Having heard the learned counsel for the parties, it is an undisputed fact that the marriage was solemnized between the petitioner and the respondent on 15.03.2004 at Siddalingeshwara Kalyan Mantapa, Yediyur, Kunigal, Tumkur District according to Hindu Rites and Ceremonies. It is also not in dispute that out of the wedlock, minor child Jia V. Srivastav was born on 09.12.2005. It is also not in dispute that there was a rift between the petitioner and respondent. Therefore, the petitioner was forced to file M.C. No.707/2010 for annulment of the marriage.
7. Accordingly, the marriage between the parties annulled by the Family Court and in terms of the compromise, the respondent was allowed to take the child from the residence of the petitioner once in three months on a Saturday after 2 p.m. and leave back the child next day i.e. on Sunday at 5 p.m., and both the petitioner and the respondent shall co-operate each other. Subsequently, the petitioner and respondent filed G & WC No.11/2015 for alteration of the earlier order passed by the family Court. The Family Court while considering the rival contentions by an order dated 02.05.2015 permitted the parties to enter into a compromise petition in terms of Annexure – E produced in the present writ petition and the earlier order was modified. Therefore, the present petitioner has filed G & WC No.38/2017 for alteration of the earlier order.
8. In view of the admitted facts stated supra, both the petitioner and the respondent are entitled for equal rights of visitation during the pendency of the main petition. This Court had an occasion to summon the child before the Court and her views was collected.
9. Taking into consideration of the paramount interest of the minor child, this Court is of the considered opinion that it will be suffice to direct the parents to bend their ways and come to an amicable settlement. Without expressing any opinion on the merits and demerits of the case pending before the Family Court, this Court is of the considered opinion that visitation rights of the respondent has to be modified.
10. Accordingly, the writ petition is disposed of and the order passed by the family Court dated 06.10.2017 on I.A. No.2 in G & WC No.38/2017 is modified as under:
The respondent is entitled to visit his minor daughter - Jiya V. Srivastav, who aged about 13 years twice in a month i.e. , 2nd and 4th Sunday at 10.30 a.m. to 6.00 p.m. of every month till the disposal of the main matter pending before the family Court and during the visitation, the parents (i.e., petitioner and respondent) shall maintain the co-operation without disturbing the mind of the minor child.
The visitation rights during vacations and festivals are kept in abeyance.
The petitioner and the respondent being highly educated, shall ensure the paramount interest of the child.
Since the main petition is disposed of, I.A. No.1/2019 does not survive for consideration In view of the peculiar facts and circumstance of the present case, the family Court, shall ensure to dispose of the petition as expeditiously as possible subject to the co- operation of both the parties to the lis.
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Sd/- JUDGE VBS