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Melo Kamalam vs Vimalanathan Sigamani on 19 February, 2019

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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
2

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,
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28th 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,
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there 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

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