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Judgments of Supreme Court of India and High Courts

Mr Santhosh C Samuel vs Mrs Blessy S S on 21 December, 2018

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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/-

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