IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MAY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.21170/2019 (GM – FC) BETWEEN:
Mr. SANTHOSH C SAMUEL S/O SHRI SAMUEL C CHACKO AGED ABOUT 42 YEARS R/AT # 6, “SHREYAS”, 1ST CROSS AYYAPPA ROAD, BASAWASAMITI LAYOUT VIDYARANYAPURA, BANGALORE-560097 AT PRESENT R/AT:
#211, DSR SUNRISE TOWER OPP. MVJ COLLEGE, CHANNASANDRA BANGALORE-560067. …PETITIONER (BY SRI MANJUNATH.H., ADV.) AND:
Mrs. BLESSY S.S W/O Mr. SANTHOSH.C.S., AGED ABOUT 40 YEARS R/AT #A-401, DURGA RAINBOW APARTMENT NEAR MAHADEVAPURA FLYOVER BANGALORE-560048. …RESPONDENT (BY SRI VENKATESH ARBATTI, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 27.04.2019 I.E., ANNEXURE-E AND GRANT INTERIM CUSTODY OF THE MINOR WARD MASTER JUSTIN S SAMUEL TO THE PETITIONER AS PER HIS PRAYER IN IA No.XVI DURING THE SUMMER VACATIONS OF 2019 VIZ., FORTHWITH TO 30.05.2019 @ 1800 HOURS.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard the learned counsel for the parties.
2. The petitioner has assailed the order dated 27.04.2019 at Annexure-E to the writ petition in G & WC.No.232/2014 by the V Additional Principal Judge, Family Court at Bengaluru whereby the respondent/mother has been directed to handover the child to the custody of the father/petitioner for three days overnights stay in between 03.05.2019 to 30.05.2019 i.e., from 04.05.2019 – 10 a.m., to 06.05.2019 – 5 a.m.
3. The petitioner is the father of the Master Justin S. Samuel who is at present 11 years old. The petitioner filed I.A.No.16 for the interim custody of his minor son during the summer vacation under Section 12 of the G & WC Act read with Sections 9 and 10 of the Family Courts Act and Sections 89 and 151 of the Code of Civil Procedure, 1908. The said application has been disposed of by the order impugned herein. Being aggrieved, this writ petition has been filed.
4. Learned counsel Sri.Manjunath.H, appearing for the petitioner would submit that the custody of the child for three days overnight stay granted by the Court below is too less. Indeed, the petitioner herein being the father of the minor child is entitled to the custody during the summer vacations at least by 50% which is reasonable and the same has not been properly appreciated by the Court below in passing the order impugned herein.
5. It is further submitted that the respondent who has filed G & WC No.232/2014 before the learned V Additional Principal Judge, Family Court at Bengaluru for the permanent custody of their minor son Master Justin S. Samuel has agreed for nine days overnight custody during the period of summer vacation – 2019 during the conversation between the petitioner and the respondent on 12.05.2019. An affidavit has been filed by the petitioner to the said effect.
6. Learned counsel for the respondent has filed a reply to the said affidavit denying the nine days overnight custody of the child agreed upon during the period, summer vacation – 2019 as claimed by the petitioner. It is submitted that the reasonable time is required for preparing the child for the school which re- opens on 03.06.2019. The negotiation which took place on 12.05.2019 having failed, the three days overnight custody of the child granted by the Court is justifiable.
7. I have considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
8. The petitioner had filed I.A.No.16 seeking for the interim custody of minor child Master Justin S. Samuel from 03.05.2019 to 30.05.2019. The order impugned being passed on 27.04.2019 disposing of the I.A directing the respondent/mother to handover the child to the custody of the father/petitioner for three days overnight stay, now the school vacation having almost come to an end, the remaining 12 days requires to be considered for the custody of the child with the father. It is also necessary that the preparatory work has to be done by the respondent/mother to make the minor child to attend the school from the re-opening day i.e., on 03.06.2019. It is necessary that the child should have the company of the father as well as the grandmother at least during the summer vacation now left apart from the preparatory days to attend the school.
9. In the circumstances, this Court deems it appropriate that the respondent/mother shall handover the child to the custody of the petitioner/father on 22.05.2019 at 10 a.m., and the petitioner/father in turn shall handover the child to the respondent/mother on 31.05.2019 at 9 a.m.,. However, it is made clear that during the stay of the child with the petitioner, the petitioner shall ensure that he shall not physically and mentally harm the child and he shall take all necessary steps to take care of the child with the assistance of his mother. The grandmother who is also present in the Court hall shall ensure that she shall take care of the child during the overnight stay. The petitioner/father shall file an affidavit before this Court that during the overnight stay as aforesaid, he will not harm the child mentally and physically and he will handover the child to the respondent/mother on 31.05.2019 at 9 a.m., at her residence. However, the child shall sleep with the grandmother on all the nine days overnight stay i.e., from 22.05.2019 to 30.05.2019.
With the aforesaid observations and directions, writ petition stands disposed of.
Sd/- JUDGE NC.