Smt D B Kavitha vs Rudrakumar Y S on 14 June, 2017

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 14TH DAY OF JUNE 2017

BEFORE

THE HON’BLE MR. JUSTICE A S BOPANNA

W.P.No. 15608/2017 (GM-FC)

BETWEEN

SMT D B KAVITHA
D/O D.S. BASAVARAJAPPA
AGED 35 YEARS,
AT NO. 106, N BLOCK,
NEAR DEPOT, DICY CONVENT ROAD,
KUVEMPUNAGAR, MYSORE.
… PETITIONER

(BY SRI B.S.RAGHU PRASAD, ADV.)

AND

RUDRAKUMAR Y S
S/O LATE SIDDARAMEGOWDA,
AGED ABOUT 47 YEARS,
R/AT NO. 67, IST CROSS,
K.H.B.COLONY,
KRISHNANADA NAGARA,
NANDINI LAYOUT,
BENGALURU – 560 096.
… RESPONDENT
(BY SRI K S MALLIKARJUNAIAH, ADV.)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 21.3.2017 PASSED
BY C/C I-ADDL. PRL. FAMILY COURT JUDGE, AT
BANGALORE IN G WC 227/2015 AT ANNEX-J CONSIDER
THE MEMO -ANNEX-G DATED 10.07.2016 AND PASS
APPROPRIATE ORDERS.
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

ORDER

Petitioner is before this Court assailing the order

dated 21.03.2017 impugned at Annexure-J to the petition.

Petitioner is also seeking issue of mandamus to consider

the memo as at Annexure-G dated 10.07.2016 and pass

appropriate orders in that regard.

2. Petitioner is the wife of the respondent. Due to

certain disputes in their married life, they have been

litigating with each other and the proceedings in

M.C.No.2968/2015 and 3577/2015 are also pending. The

respondent herein has filed a petition under the Guardians

and Wards Act registered in G. W.C.No.227/2015. In the

said proceeding, the respondent herein had also filed an

application in I.A.No.2 seeking interim custody of the child

Thanmay. Petitioner herein had filed a memo dated

10.07.2016 contending that in view of the provisions

contained in Section 9 of the Guardians and Wards Act,
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petition would not be maintainable before the Family Court

at Bangalore as the child is an ordinary resident of Mysore

and therefore, petition if any is to be filed there.

3. The Court below vide order dated 21.03.2017

though has indicated in the title as, ‘order on I.A.2 and

memo dated 10.07.2016’, has bestowed its attention to

consider I.A.2 and pass orders thereon granting visitation

rights in respect of the child on 1st and 3rd Saturday of

each month. Before such order was passed, the Court

below has not adverted to the contention put forth in the

memo dated 10.07.2016, as evident from the order. The

law is well settled that when an issue with regard to the

jurisdiction is raised, before considering any order to be

passed including interim order, jurisdiction is to be

decided and only thereafter, the Court can exercise such

jurisdiction if available, to consider the relief if any to be

granted including interim order. In the instant case no

such consideration has been made by the Court below.

The very nature of the averments put forth in the petition

and the cause title in the petition in G. W.C.No.227/2015
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would indicate that the respondent herein himself has

indicated the address of the petitioner herein as at Mysore.

Alternative address provided is also at Mysore. If that be

the position when it is the admitted case that the child –

Master Thanmay was with the mother and the respondent

herein had filed the petition seeking custody of the child,

the child also will have to be considered as an ordinary

resident of Mysore along with his mother. If that be the

position the petition ought to have been filed at Mysore.

This aspect of the matter in any event has been considered

by the Hon’ble Supreme Court in the case of RUCHI MAJOO

V. SANJEEV MAJOO – AIR 11 SC 1952 and through the

decision of this Court in the case of RAMA AND OTHERS V.

SHARADHA – 2016 (2) KCCR 1517.

4. In such circumstances, the order impugned

dated 21.03.2017 granting the benefit of interim relief on

I.A.2 without deciding on the memo dated 10.07.2016

would not be sustainable. In a normal course, it would

have been appropriate for this Court to set aside the said

order and restore the application and the memo for
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consideration and thereafter to pass orders. However, in

the instant case having already adverted to the fact

situation and since I have already arrived at the

conclusion that the petitioner herein being at Mysore and

the child being an ordinary resident of Mysore, petition in

any event will have to be considered by the Court having

jurisdiction at Mysore. At this stage, in order to allay the

apprehension of the learned counsel for the respondent, it

is clarified that the provision indicates that the petition is

to be presented at the place where the child is an ordinary

resident as on the date of the presentation of the petition,

in that view even at a subsequent period or presently if the

petitioner is residing elsewhere with child, the jurisdiction

as on the date of filing the petition is at Mysore and

therefore, it would have to be presented at Mysore. In that

view of the matter, the order dated 21.03.2017 is set aside.

5. The Family Court, Bangalore, is directed to

return the petition in G. W.C.No.227/2015 to the

respondent herein who is the petitioner in the said

proceeding so as to enable him to present the petition at
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Mysore. On such presentation, the Court at Mysore shall

issue notice and proceed further in the matter in

accordance with law.

Petition is accordingly disposed of.

SD/-

JUDGE

VP

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