IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NO.23961/2018 (GM-FC) BETWEEN:
SHRI SANJAY GUPTA, S/O SHRI GOPI CHAND, AGED ABOUT 51 YEARS, RESIDING AT NO.1417, 10TH MAIN, VIJAYANAGAR, BENGALURU-560 040.
PRESENTLY AT NO.2133, HILLSTONE DRIVE, SAN JOSE, CALIFORNIA-95138, UNITED STATES OF AMERICA. ... PETITIONER (BY SMT.GEETHA DEVI.M.P, ADVOCATE) AND:
SMT. SEEMA GUPTA, W/O. SHRI.SANJAY GUPTA, AGED ABOUT 51 YEARS, R/AT NO.F-302, WILSON MANOR APARTMENTS, 13TH CROSS, HOSUR ROAD, WILSON GARDEN, BENGALURU-560027. ... RESPONDENT (BY SRI RAVISHANKAR, ADVOCATE FOR SRI P.B.APPAIAH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.04.2018 ON I.A.NO.3 IN M.C.1107/2018 AS PER ANNEXURE-H AND TO GRANT INJUNCTION RESTRAINING THE RESPONDENT AS PRAYED IN I.A.NO.3 IN MC NO.1107 OF 2018 PASSED BY II ADDL. PRINCIPAL JUDGE, FAMILY COURT, BENGALURU AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Smt. Geetha Devi M.P., learned counsel for the petitioner.
Sri Ravishankar, learned counsel for Sri P.B. Appaiah, for the respondent.
2. The writ petition is admitted for hearing.
With the consent of the parties, the matter is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner inter alia questions the validity of the order dated 20.04.2018 passed by the II Additional Principal Judge, Family Court, Bengaluru, by which, the application filed by the petitioner under Order 39 Rules 1 and 2 of CPC was dismissed.
4. The facts giving rise to the filing of this petition briefly stated are that, on 10.07.1992, the marriage of the petitioner and the respondent was solemnized. Out of the wed lock, one child namely, Ms. Sanjana Gupta was born on 16.10.1993 and the second daughter was born to the parties on 05.09.1998. Admittedly, the parties are residing separately since May 2013. The petitioner filed the petition namely, M.C.No.1107/2018 before the II Additional Principal Judge, Family Court, Bengaluru, seeking dissolution of marriage. In the aforesaid proceedings, the petitioner filed an application for grant of injunction restraining the respondent from causing any interference either with the job or with the peaceful living of the petitioner and daughter of the petitioner, who is currently residing with him in California, USA. The respondent filed reply to the aforesaid application and opposed the prayer. The Family Court by the impugned order dated 20.04.2018 has rejected the application inter alia on the ground that no allegation has been made by the petitioner that the respondent has tried to disturb his peaceful living in the house at California. On the aforesaid ground, the application filed by the petitioner was rejected.
5. Learned counsel for the petitioner submitted that the Family Court grossly erred in not appreciating the fact that in order to disturb the job and peaceful living of the petitioner and the child of the petitioner, the physical presence of the respondent is not necessary and the disturbance can be caused by various means of communication.
6. On the other hand, learned counsel for the respondent supported the order passed by the Family Court.
7. I have considered the submissions made by the learned counsel for the parties and perused the records.
8. From a perusal of the order passed by the Family Court, it is evident that the Family Court has rejected the application merely on the ground that no allegation has been made by the petitioner that the respondent has ever tried to disturb the peaceful living of the petitioner. The aforesaid averment is factually incorrect as in the affidavit which was filed in support of the application under Order 39 Rules 1 and 2 of CPC, in paragraphs 8, 9 and 10, the petitioner has narrated the manner in which the respondent has tried to interfere with the job and the stay of the daughter of the parties in USA.
9. The Family Court ought to have appreciated that the physical presence of the respondent is not necessary to cause disturbance to the peaceful living of the petitioner. The impugned order, therefore, suffers from wise of non-application of mind as well as error apparent on the face of the record. The impugned order is, therefore, quashed and the respondent is restrained from causing any interference with the job and peaceful living of the petitioner and the daughter of the petitioner in USA.
10. At this stage, I deem it appropriate to draw the attention of the Family Court to the Rules framed by this Court namely, Karnataka Case Flow Management Rules, which provide that matrimonial case should be decided within a period of one year from the date of its institution. The Family Court shall make an endeavour to conclude the proceedings within a period of eight months from the date of receipt of certified copy of the order passed today.
11. Needless to state that the parties shall co-operate with the Family Court for early disposal of the proceedings and shall not seek unnecessary adjournment.
With the aforesaid directions, the writ petition is disposed of.
Sd/- JUDGE ca