IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF MARCH, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.9615/2016 (GM-FC) BETWEEN:
SRI. FIROZ KHYSER S/O.LATE MAZRUL HAQ AGED ABOUT 43 YEARS R/O. VIJAYAPURA KANNADA SCHOOL ROAD, CHICKMAGALORE DISTRICT-577 101 ... PETITIONER (BY SRI VINOD GOWDA, ADV.) AND:
SMT. NIKHAT KAUSER W/O.FIROZ KHYSER AGED ABOUT 30 YEARS D/O K.SHARFUDDIN, MOMIN MOHALLA, HOLEHONNUR ROAD, BHADRAVATHI TALUK AND SHIVAMOGGA DISTRICT-576 101 ... RESPONDENT (BY SMT. TAJUDDIN, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:18.1.2016 PASSED ON IA NO.1 IN G & W.C.NO.16/2015 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC BHADRAVATHI AS PER ANNEXURE-E AND DIRECT THE RESPONDENT HAND OVER THE MINOR SON FOR INTERIM CUSTODY TWICE IN A WEEK.
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 18.01.2016 passed on I.A.No.1 in G & W.C.No.16/2015 as at Annexure-E to the petition.
2. The petitioner is the husband of the respondent. Due to certain disputes in their married life, they are residing separately. The petitioner herein has filed a petition under Section 7(1)(a) r/w. Section 10 of the Guardians and Wards Act, 1890 before the Court below in G & W.C.No.16/2015 seeking that the petitioner be declared as the guardian of the minor son of the parties named Mohammed Faizan. In the pending proceedings, the petitioner herein filed an application in I.A.No.1 seeking interim custody of the son. By the order dated 18.01.2016, the application has been disposed of. Claiming to be aggrieved by the same, the petitioner is before this Court.
3. A perusal of the order dated 18.01.2016 would disclose that the application has not been considered on its merits and no orders assigning reasons for the disposal of the application is made. Instead, all that has been indicated in the order is that the relief as sought in the application is same as the main petition and therefore, the application is disposed of.
4. In that background, a perusal of the petition before the Court below would indicate that the petition is filed seeking a declaration to be made that the petitioner is the guardian of the child. In the application, what has been sought is the interim custody, during the pendency of the petition. Whether, such custody is to be granted or not is a matter which is to be considered by the Court below, based on the objection that is filed by the respondent and a reasoned order is required to be made. In the alternative, if the interim custody is not granted by the Court below, whether the visitation right is to be granted is also an aspect which is required to be considered, before passing the orders on the application.
Since, such detailed consideration on the application has not been made, the order dated 18.01.2016 in its present form would not be justified.
5. Therefore, without expressing any opinion on the merits of the application in I.A.No.1, the order dated 18.01.2016 is set aside. The application in I.A.No.1 is restored to the file of the Court below with a direction to the Court below to take note of the prayer made in the application and the objection putforth by the respondent and arrive at a conclusion on the application on its merits in accordance with law. Such consideration on the application shall be made in an expeditious manner but, not later than three months from the date on which a copy of this order is furnished. All contentions in that regard are left open.
The petition is accordingly disposed of.
Sd/- JUDGE ST