IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.44033-034 OF 2018 (GM-FC) BETWEEN:
SMT. SUMANGALA W/O SANDEEP ANAND JAMBLI AGED ABOUT 35 YEARS ASST. PROFESSOR R/O. #102, MAHAVEER ASPEN KANAKANAPURA MAIN ROAD NEAR YALACHENAHALLI METRO STATION BENGALURU-560078.
(By Mr. B. RAJA SUBRAMANYA BHAT, ADV.) AND:
SRI. SANDEEP ANAND JAMBLI S/O ANAND VENKATRAO JAMBLI AGED ABOUT 39 YEARS R/O. FLAT No.216, SAI PARAGON MEADOWS BEML LAYOUT, 4TH MAIN ROAD (DEAD END) KUNDALAHALLI GATE, THUBARAHALLI BENGALURU-560 066.
(By Mr. RAMESH P. KULKARNI, ADV.) - - -
… PETITIONER … RESPONDENT These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India, praying to set aside the orders dated 16-1-2018 passed on the I.A.No.3 in M.C.No.5066/2016 pending on the file of VI Addl. Family Judge at Bengaluru at Annex-E and etc.
These Writ Petitions coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-
ORDER Sri.B.Raja Subramanya Bhat, learned counsel for the petitioner.
Sri.Ramesh P.Kulkarni, learned counsel for the respondent.
2. In these petitions under Article 227 of the Constitution of India, the petitioner has assailed the validity of the orders dated 16.01.2018 and 27.04.2018 passed by the Family Court, Bangalore. By order dated 16.01.2018, the Family Court has rejected the application preferred by the petitioner under Section 26 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for short) on the ground that it has no jurisdiction to deal with the application as the child lives in Dharwad with her grand parents. By order dated 27.04.2018, the application filed by the petitioner under Section 26 of the Act has been rejected on the ground that the petitioner has failed to exercise the visiting rights.
2. Learned counsel for the petitioner submitted that the petitioner is ready and willing to visit Dharwad in order to exercise her visiting rights. On the other hand, learned counsel for the respondent submits that the order passed by the Family Court is just and proper.
3. I have considered the submissions made on the both sides. Section 26 of the Act, reads as under:
“26. Custody of children. - In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.
[Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent].”
4. From perusal of Section 26 of the Act, it is evident that the Court dealing with the proceeding under the Act has jurisdiction to pass interim orders with regard to custody of minor children. However, the aforesaid provision has not been considered by the Family Court while passing the impugned order dated 16.01.2018. Accordingly, the impugned order dated 16.01.2018 is quashed. Since the petitioner has expressed her desire to visit Dharwad to exercise her visitation rights, before this Court, the impugned order dated 27.04.2018 is quashed and the Family Court is directed to decide the application preferred by the petitioner under Section 26 of the Act afresh by a speaking order within a period of three weeks from the date of receipt of certified copy of the order passed today. It is made clear that this Court has not expressed any opinion on merits of the case.
Accordingly, the petitions are disposed of.
Sd/- JUDGE RV