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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2018
BEFORE
THE HON’BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.56990/2018 (GM – FC)
BETWEEN:
MR. SANTHOSH C SAMUEL,
AGED ABOUT 42 YEARS,
S/O SHRI. SAMUEL C CHACKO,
R/A: #6, “SHREYAS”, I CROSS,
AYYAPPA ROAD,
BASAWASAMITI LAYOUT,
VIDYARANYAPURA,
BANGALORE – 560 097.
AT PRESENT:
R/A:#211, DSR SUNRISE TOWER,
OPP. MVJ COLLEGE, CHANNASANDRA,
BANGALORE – 560 067. … PETITIONER
(BY SRI.UDAY HOLLA, SR. ADV., FOR
SRI. MANJUNATH H., ADV.,)
AND:
MRS. BLESSY S.S..,
AGED ABOUT 40 YEARS,
W/O MR.SANTHOSH C.S.
R/A:#A-401,
DURGA RAINBOW APARTMENT,
NEAR MAHADEVAPURA FLYOVER,
BANGALORE – 560 048. … RESPONDENT
(BY SRI.K.S.HARISH, ADV.)
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THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO QUASH THE IMPUGNED ORDER DATED
13.12.2018 I.E., ANNEXURE – F AND GRANT INTERIM
CUSTODY OF THE MINOR WARD MASTER JUSTIN S
SAMUEL TO THE PETITIONER AS PER HIS PRAYER IN IA
NO.IX DURING THE NEW YEAR VACATION OF 2018-19
VIZ.27/12/2018 @ 1000 HOURS TO 28.12.2018 @ 1200
HOURS AND 30.1.2018 @ 0700 HOURS TO 01.01.2018 @
1700 HOURS.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioner filed the present writ petition against
the order dated 13.12.2018 made on I.A.No.IX in G WC
No.232/2014, permitting the petitioner to exercise
visitation rights on the child Justin S. Samuel from 10.00
a.m. to 5.00 p.m. on 27th and 29th December, 2018 and 1st
January, 2019, and the place of pick-up and drop back of
the child shall be the residence of the respondent.
Further, petitioner is directed not to give ill-advise to the
child and to consider the likes and dislikes of the child
while exercising custody rights on the above said days.
The respondent – wife is also directed to handover the
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child to the petitioner on the above said days and time
and petitioner is directed not to retain the child after the
above said days and time. The petitioner filed the petition
under Secs. 6 and 7 read with Sec. 17 of the Guardians
and Wards Act, 1890, for appointing and declaring him as
the guardian of his child Justin Samuel and grant him
permanent custody of his minor child raising various
contentions.
2. The respondent – wife filed detailed objections
denying all averments, except the averment at para 13 of
the petition and sought for dismissal of the petition.
3. During the pendency of the proceedings,
petitioner filed I.A.No.9 under Sec. 12 of the Guardians
and Wards Act read with Secs. 9 and 10(3) of the Family
Courts Act, to direct the respondent for interim custody of
his 11 year old minor son Master Justin S. Samuel,
during Diwali and Christmas Vacations i.e. on Christmas,
25-12-2018 for Kids’ Christmas Party and on 27.12.2018
@ 10.00 hrs. to 28.12.2018 @ 12.00 hrs. (one overnight)
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and on 30.12.2018 @ 07.00 hrs. to 01.01.2019 @ 17.00
hrs. (two overnights).
4. The said petition was resisted by the respondent
– wife by filing detailed objections. The Family Court
passed the impugned order on 13.12.2018, permitting the
petitioner visitation rights only for 3 days. Hence, the
present writ petition is filed.
5. I have heard the learned counsel for the parties
to the lis.
6. Sri. Uday Holla, learned Senior counsel for the
petitioner vehemently contended that the order passed by
the Family Court granting only visiting rights and rejecting
the prayer for overnight stay for three days is erroneous
and contrary to the material on record. He would further
contend that the impugned order does not whisper on the
mental health condition of the respondent. He would
further contend that the learned Judge failed to take
judicial notice of the document dated 26.11.2018 to show
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that there is no evidence of schizoid or borderline
personality disorder. He would further contend that the
trial Court erred in holding that it is premature to grant
overnight custody of the child to the petitioner. Whereas,
the petitioner has succeeded in having overnight custody
of his son in 2015 itself and the same would have
continued, if not for the repeated fraud on Court by the
respondent. Therefore, he sought to allow the petition.
7. Per contra, Sri. Harish, learned counsel for the
respondent – wife sought to justify the impugned order
and contended that from 2014 till 2018, the petitioner was
given only visitation rights by the repeated orders passed
by the Family Court and the Family Court never gave
overnight custody of the child to the petitioner. He would
further contend that the petitioner is suffering from
`Borderline Schizoid Personality Disorder’ and therefore, if
the custody of the child is given to the petitioner as
prayed, it will endanger the life of the child. Therefore, he
sought to dismiss the petition.
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8. Having heard the learned counsel for the parties,
it is an undisputed fact that petitioner and respondent are
husband and wife and out of their wedlock, they have a
child for whose custody both of them are fighting. It is the
specific case of the petitioner – husband, in the petition
filed, at para 13, he has categorically stated that when the
child was about 9 months old, the respondent took up an
assignment in China and left the baby in the sole and
whole care of the petitioner. The petitioner singlehandedly
took care of the child then with some help from his mother
and the petitioner worked from home to be 24 X 7 near
the child. Further in the month of December, 2011, the
respondent went away to USA on a three week assignment
leaving the child with the petitioner and the petitioner was
taking care of his child, risking his job. Though the entire
averments made in the petition were denied by the
respondent – wife by filing statement of objections, at para
11 of the objections it is admitted by the respondent – wife
that it is true that she went for a two short overseas
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assignment to China and then to USA, but it was under
the compulsion of the petitioner – husband that she was
forced to undertake the assignments abroad to bring hme
more money in the form of additional allowance and
increased salary. Anyway it is not the case of the
petitioner that the respondent had undertaken overseas
assignments against his wishes.
9. It is a fact that when the child was nine months
old, the petitioner has taken care of the child when the
respondent – wife had been to China and USA on short
assignments. In the prayer, the petitioner has sought for
interim custody of his child only on certain weekend and
Christmas Vacations i.e. on 25-12-2018 for Kids’
Christmas Party and on 27.12.2018 @ 10.00 hrs. to
28.12.2018 @ 12.00 hrs. (one overnight) and on
30.12.2018 @ 07.00 hrs. to 01.01.2019 @ 17.00 hrs. (two
overnights).
10. Be that as it may, the fact remains that the
child is now aged about 11 years and the child is capable
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of understanding both the father and mother. It is also
not in dispute that visitation rights were given to the
petitioner – father for all these years. It is further not
disputed that during any such visitation rights, the
petitioner had either harassed or harmed the child. If this
is the fact situation, there is no need to apprehend that
the father will harm his own child and it is also not in
dispute that the father is living with his parents who will
also take care of the child during its stay for two days i.e.
on 30.12.2018 at 07.00 hours to 01.01.2019 at 17.00
hours (two overnights).
11. During the stay of the child, the petitioner to
ensure that he shall not physically harm the child and he
shall take all necessary care of the child, with the
assistance of his mother. The grand-mother, who is also
present in the Court hall, shall ensure that she shall take
care of the child during the two overnights. The child
shall sleep with the grand mother for the two overnights.
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12. The petitioner – father shall file an affidavit
before this Court that during the two overnights, he will
not harm the child mentally and physically and he will
send back the child on 01.01.2019 at 17.00 hours to the
respondent – wife at her residence. If the respondent –
wife permits, the petitioner can also stay with the child in
the house of the respondent.
13. Accordingly, the writ petition is disposed of with
the above observations.
Sd/-
JUDGE
Mgn/-