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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY 2019
BEFORE
THE HON’BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NO.54748 OF 2018 (GM-FC)
BETWEEN:
MELO KAMALAM
W/O VIMALANATHAN SIGAMANI,
AGED 46 YEARS
RESIDING AT NO.19/1,
1ST FLOOR, 2ND MAIN,
IV CROSS, GANGANAGAR EXTENSION,
R.T.NAGAR POST,
BENGALURU-560 032.
… PETITIONER
(By Mis. P ANU CHENGAPPA, ADV.)
AND:
VIMALANATHAN SIGAMANI
S/O LATE THIAGARAJ,
AGED 48 YEARS
WORKING AT SUPPORT ESCALATION ENGINEER,
MICROSOFT INDIA R AND D PVT LTD.,
LEVEL-II AND III BLOCK B
EMBASSY GOLD LINKS BUSINESS PARK,
OFF INTERMEDIATE RING ROAD,
BANGALORE-71
… RESPONDENT
(By Mr. S V SHASTRI ADV., FOR C/R)
—
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DTD:27.9.2018 PASSED BY THE LEARNED IV
ADDITIONAL PRINCIPAL FAMILY JUDGE, BENGALURU IN G WC
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NO.34/2012 IN I.A NO.11 PRODUCED HEREIN AS IN ANNEXURE-A
AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Mis.P.Anuchangappa, learned counsel for the
petitioner.
Mr.S.V.Shastri, learned counsel for the
respondent.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the
Constitution of India, the petitioner has challenged the
validity of the order dated 27.09.2018, by which
application filed by the petitioner under Section 12 of
the Guardians and Wards Act, 1890 (herein after
referred to as ‘the Act’ for short) has been rejected.
3. Facts giving rise to filing of the petition
briefly stated are that the on 04.01.2002, the parties
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got married and it is the case of the petitioner that she
was required to leave the matrimonial home along with
her two children in March 2011 on account of threat to
her life. In proceeding pending under the Act the
petitioner filed an application to meet the children
during the vacation and the weekends, which was
allowed by the family court by order dated 17.12.2015.
Thereafter, the petitioner filed an application seeking
custody of the children on 29.01.2016. The aforesaid
application has been rejected by the impugned order
dated 27.09.2018.
4. Learned counsel for the petitioner while
inviting the attention of this Court to the averments
made in paragraph 6 of the affidavit dated 26.07.2018
submitted that the averment made in paragraph 7 has
not been considered and in a summary manner, the
application filed seeking interim custody has been
rejected. It is also submitted that the petitioner is not
being allowed to effectively exercise her visitation rights
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and has no exclusive access to the child as the
respondent keeps the custody of the children in the
mediation centre and the impugned order has been
passed on misinterpretation of the memo. On the other
hand, learned counsel for the respondent submitted that
Madurai Bench of Madras High Court by order dated
28.08.2012 passed in Crl(c)(MD)No.358/2012 has held
that the petitioner has only visitation rights and
therefore, no interference in the matter is called for.
Therefore, the application seeking custody of the
children is not maintainable
5. I have considered the submissions made by
learned counsel for both the parties and perused the
record. In paragraph 6 of the affidavit the petitioner has
stated as follows:
“I further state that I only get
to see the children twice a month
and the petitioner has not brought
the children for visitation on 6th
January 2018, 24th March 2018,
528th April 2018, 5th May 2018 and
26th May 2018. He has not only fed
the innocent minds against me and
my character but has been
successful in depriving me of their
company which I get only for 8
hours in a month. That 8 hours of
visitation granted by the court is
cut short to 4 hours by petitioner
by coming late and after coming
late taking them to the canteen,
and also taking them here and
there around the mediation
premises and keeping them close
to him preventing the children from
bonding with me. No exclusivity
with the children has been given to
me despite the order of this court.
The Petitioner sits tightly clinging
to the children. Since the age of 2
years, my younger child has been
deprived of his mother. I am
aggrieved beyond that I can
express, As a mother I have lost 7
growing up years of my precious
children”.
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6. The family court by impugned order has
rejected the application on the following grounds:
“In the affidavit filed in support
of the application, the respondent has
stated that the petitioner is not
regular in bringing the children to the
mediation Center and even he is not
punctual in bringing in bringing the
children well in time. Except this, the
respondent has not made out any
grounds for seeking interim custody
of the minor children. If the
respondent is not regular and not
punctual in brining the children to the
Mediation Center, then the
respondent cannot file this application
seeking interim custody. It may be
noted that all along these years the
minor children are under the care and
custody of the petitioner. In the
circumstances, if the interim custody
is given to the respondent, then it
may cause some disturbance in the
mind of the children. At this stage,
7there is no evidence to show the
pressing need to hand over the
interim custody of the minor children
to the respondent”.
7. Thus, it is evident that the family court has
neither considered the averments made by the
petitioner in paragraph 6 of the affidavit nor the effect
of the order passed by Madurai Bench of Madras High
court, the impugned order has been passed in a cryptic
and cavalier manner it is accordingly quashed and set
aside and the matter is remanded to the family court to
consider the application of the petitioner afresh in
accordance with law. It is made clear that this court has
not expressed any opinion on the merits of the case.
Accordingly, the petition is disposed of.
Sd/-
JUDGE
SS