IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.54748 OF 2018 (GM-FC) BETWEEN:
MELO KAMALAM W/O VIMALANATHAN SIGAMANI, AGED 46 YEARS RESIDING AT NO.19/1, 1ST FLOOR, 2ND MAIN, IV CROSS, GANGANAGAR EXTENSION, R.T.NAGAR POST, BENGALURU-560 032.
(By Mis. P ANU CHENGAPPA, ADV.) AND:
VIMALANATHAN SIGAMANI S/O LATE THIAGARAJ, AGED 48 YEARS WORKING AT SUPPORT ESCALATION ENGINEER, MICROSOFT INDIA R AND D PVT LTD., LEVEL-II AND III BLOCK B EMBASSY GOLD LINKS BUSINESS PARK, OFF INTERMEDIATE RING ROAD, BANGALORE-71 (By Mr. S V SHASTRI ADV., FOR C/R) - - -
… PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DTD:27.9.2018 PASSED BY THE LEARNED IV ADDITIONAL PRINCIPAL FAMILY JUDGE, BENGALURU IN G & WC NO.34/2012 IN I.A NO.11 PRODUCED HEREIN AS IN ANNEXURE-A AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mis.P.Anuchangappa, learned counsel for the petitioner.
Mr.S.V.Shastri, learned counsel for the respondent.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has challenged the validity of the order dated 27.09.2018, by which application filed by the petitioner under Section 12 of the Guardians and Wards Act, 1890 (herein after referred to as ‘the Act’ for short) has been rejected.
3. Facts giving rise to filing of the petition briefly stated are that the on 04.01.2002, the parties got married and it is the case of the petitioner that she was required to leave the matrimonial home along with her two children in March 2011 on account of threat to her life. In proceeding pending under the Act the petitioner filed an application to meet the children during the vacation and the weekends, which was allowed by the family court by order dated 17.12.2015. Thereafter, the petitioner filed an application seeking custody of the children on 29.01.2016. The aforesaid application has been rejected by the impugned order dated 27.09.2018.
4. Learned counsel for the petitioner while inviting the attention of this Court to the averments made in paragraph 6 of the affidavit dated 26.07.2018 submitted that the averment made in paragraph 7 has not been considered and in a summary manner, the application filed seeking interim custody has been rejected. It is also submitted that the petitioner is not being allowed to effectively exercise her visitation rights and has no exclusive access to the child as the respondent keeps the custody of the children in the mediation centre and the impugned order has been passed on misinterpretation of the memo. On the other hand, learned counsel for the respondent submitted that Madurai Bench of Madras High Court by order dated 28.08.2012 passed in Crl(c)(MD)No.358/2012 has held that the petitioner has only visitation rights and therefore, no interference in the matter is called for. Therefore, the application seeking custody of the children is not maintainable 5. I have considered the submissions made by learned counsel for both the parties and perused the record. In paragraph 6 of the affidavit the petitioner has stated as follows:
“I further state that I only get to see the children twice a month and the petitioner has not brought the children for visitation on 6th January 2018, 24th March 2018, 28th April 2018, 5th May 2018 and 26th May 2018. He has not only fed the innocent minds against me and my character but has been successful in depriving me of their company which I get only for 8 hours in a month. That 8 hours of visitation granted by the court is cut short to 4 hours by petitioner by coming late and after coming late taking them to the canteen, and also taking them here and there around the mediation premises and keeping them close to him preventing the children from bonding with me. No exclusivity with the children has been given to me despite the order of this court. The Petitioner sits tightly clinging to the children. Since the age of 2 years, my younger child has been deprived of his mother. I am aggrieved beyond that I can express, As a mother I have lost 7 growing up years of my precious children”.
6. The family court by impugned order has rejected the application on the following grounds:
“In the affidavit filed in support of the application, the respondent has stated that the petitioner is not regular in bringing the children to the mediation Center and even he is not punctual in bringing in bringing the children well in time. Except this, the respondent has not made out any grounds for seeking interim custody of the minor children. If the respondent is not regular and not punctual in brining the children to the Mediation Center, then the respondent cannot file this application seeking interim custody. It may be noted that all along these years the minor children are under the care and custody of the petitioner. In the circumstances, if the interim custody is given to the respondent, then it may cause some disturbance in the mind of the children. At this stage, there is no evidence to show the pressing need to hand over the interim custody of the minor children to the respondent”.
7. Thus, it is evident that the family court has neither considered the averments made by the petitioner in paragraph 6 of the affidavit nor the effect of the order passed by Madurai Bench of Madras High court, the impugned order has been passed in a cryptic and cavalier manner it is accordingly quashed and set aside and the matter is remanded to the family court to consider the application of the petitioner afresh in accordance with law. It is made clear that this court has not expressed any opinion on the merits of the case.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS