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Mrs Swathi Vikram vs Mr Vikram B D on 20 April, 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 20TH DAY OF APRIL, 2018

BEFORE

THE HON’BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN

WRIT PETITION NO.16658 OF 2018 (GM-FC)

BETWEEN:

Mrs. Swathi Vikram
Aged about 29 years
R/a: No. 86, Peace Heaven 2
S V Road, Sarvabhouma Nagar
Bengaluru-560 076. …Petitioner

(By Sri. C.V. Nagesh, Senior Advocate
for Sri. Er.H. Manjunath, Advocate)

AND:

1. Mr. Vikram B D
Aged about 40 years
R/a: Thotaddagadde Estate
Anemahal Post
Sakleshpur-573 134.

2. Mrs. Naina S
Major
Headmistress
Amber Valley Residential School
Chikmagalur-577 133.
… Respondents
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(By Sri. D.R. Ravishankar, Advocate
For Sri. N. Krishna Murthy, Advocate for R1)

This writ petition is filed under Articles 226 and
227 of the Constitution of India praying to call for
records in G WC No. 8/2017 pending before the
Hon’ble Principal Judge, Family Court at
Chikkamagaluru and etc.,

This writ petition coming on for Preliminary
Hearing, this day, the court made the following:

ORDER

Mrs. Swathi Vikram, the mother of a minor son

Master Ryan, has challenged the legal validity of order

dated 12.04.2018, passed by the Principal Judge,

Family Court, Chikkamagaluru, whereby the learned

Family Court has granted an interim custody of Master

Ryan to the petitioner only from 13.04.2018 at 15:00

hours to 30.04.2018 at 15:00 hours.

2. Briefly, the facts of the case are that the

petitioner and respondent No.1, Mr. Vikram B.D., were

married on 21.01.2010, according to the Hindu customs

and rites. On 13.10.2011, they were blessed with a son,
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Ryan. At present, he is seven years old child. Presently,

Ryan is studying at Amber Valley Residential School,

Chikkamagaluru. During their married life, certain

differences arose between the couple; they parted their

ways. On 08.11.2017, the petitioner filed a petition

namely, G WC No.8/2017 under Sections 6, 7, 8, 9

and 25 of the Guardians and Wards Act, 1890,

(hereinafter referred to as ‘the Act’ for short) before the

learned Family Court. The respondent No.1 filed his

objections to the said petition.

3. During the pendency of the proceedings, the

petitioner filed an application for seeking interim

custody of the child. The said application was allowed

by the learned Family Court by order dated 16.12.2017,

granting her the custody of the child during the Winter

Vacation in the month of December, 2017 to January,

2018. Since respondent No.1 was aggrieved by the said

order, he filed a writ petition before this Court, namely,
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W.P.No.58068/2017. By order dated 21.12.2017, while

upholding the interim order dated 16.07.2017, this

Court modified the order to the limited extent that while

the petitioner would have the interim custody of Ryan,

the petitioner’s mother, Jayalakshmi, should also

accompany the child.

4. With the approaching summer vacations,

and no longer having the custody of the child, the

petitioner again filed an application, namely, I.A. No.13,

for seeking interim custody of Ryan for 50% of his

summer vacation. The respondent No.1 filed his

objections. Application was duly heard by the presiding

officer. However, the order could not be pronounced by

the presiding officer as the presiding officer went on

leave. Therefore, the petitioner filed a memo for

extending the period for which she was seeking Ryan’s

interim custody. By order dated 12.04.2018, as

mentioned above, the interim custody of Ryan has been
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given to the petitioner for a limited period. Hence, even

then, the petitioner is still aggrieved by the said order.

Thus, this petition before this Court.

5. Mr. C.V. Nagesh, learned Senior Counsel for

Mr. ER H. Manjunath, the learned counsel for the

petitioner, has raised two arguments before this Court:

firstly, since the child has summer vacation, the

petitioner should have been given the interim custody

for the 50% of the summer vacation period. However,

the learned Family Court has granted hardly seventeen

days for the petitioner to be with her son.

Secondly, since the petitioner had raised various

grievances against her own mother, Jayalakshmi, the

condition imposed by the learned Family Court that the

child will be in the custody of his mother provided, the

child is accompanied by Jayalakshmi, the petitioner is

certainly aggrieved by the imposition of this condition.

The learned Senior Counsel for the petitioner pleads
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that although the petitioner may be a working woman,

although she may be staying independently, but there is

no conceivable reason for imposing the condition that

the child will be accompanied by his maternal

grandmother, Jayalakshmi. Moreover, since the

petitioner has already filed criminal cases against her

mother, Jayalakshmi, since there is animosity that exist

between the petitioner and her mother, the presence of

the mother may adversely affect the child’s psychology.

Lastly, since the mother is the best person to

know about the interest of her child, the petitioner is

justified in challenging the condition imposed by the

learned Family Court, before this Court. Hence, the

impugned order deserves to be modified by this Court.

6. On the other hand, Mr. D.R. Ravishankar,

the learned counsel for the respondent, has extensively

contended that when the child was interviewed by the

learned Family Court, the child clearly stated that he
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prefers more to be with his father than his mother.

Moreover, the law does not prescribe that the 50% of the

summer vacation should be spent with one parent and

the remaining 50% of the summer vacation should be

spent with the other parent. Considering the view

expressed by the child, the learned Family Court is

justified in not giving the petitioner the interim custody

for half of the summer vacation.

Secondly, admittedly, the petitioner happens to be

a working woman, who would have to discharge her

professional duties, as well. Therefore, she may not

devote her complete time with the child. Moreover, she

is staying in a paying guest accommodation. Thus,

while the petitioner attends her professional work, the

child will be left all alone. Hence, there is need for a

crèche or baby sitter. According to the learned counsel,

there can be no better baby sitter than his own

maternal grandmother.

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Thirdly, the respondent has made certain

allegations against the petitioner’s private life.

Therefore, in order to ensure that the child is not

exposed to the adverse private life being led by the

petitioner, the presence of the grandmother is most

essential.

Lastly, the petitioner has nowhere pleaded in the

writ petition, and has nowhere challenged in the

pleadings, the conditions imposed by the learned Family

Court. Therefore, the contention raised by the learned

counsel for the petitioner is beyond the pleadings.

Hence, it should not be accepted by this Court. Thus,

the learned counsel has supported the impugned order.

7. Heard the learned counsel for the parties,

and examined the impugned order.

8. Admittedly, the petitioner had initially

requested that she should be given Ryan’s interim
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custody from 03.04.2018 to 30.04.2018. Subsequently,

she did file a memo for extending the period till

09.05.2018. The impugned order was passed on

12.04.2018. As mentioned above, the petitioner has

been given custody from 13.04.2018 at 15.00 hours

upto 30.04.2018 at 15.00 hours. But, considering the

fact that the case is finally being decided today i.e., on

20.04.2018, in case the impugned order was not

modified by this Court, the petitioner would have just

about 10 days to spend with her son. This Court is of

the opinion that the mother does have the right to

spend time with her son. For, an emotional and

psychological bonding needs to be developed between

the mother and the son. It is not only important for the

mother to spend time with the son but, most

importantly, it is essential for the child to get to know

his mother, and to have memories for having spent time

with his mother. In case, the mother is a mythical

figure, due to her absence, the absence of the mother
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would adversely affect the psychology of the child. For

the rest of his life, he would look for a mother figure

having missed the real mother in the childhood.

Therefore, this Court is of the opinion that the period of

interim custody given to the petitioner should be

increased from 30.04.2018 till 09.05.2018. Therefore,

this Court modifies the impugned order, and directs

that the petitioner shall continue to have Ryan’s interim

custody till 09.05.2018 upto 15.00 hours.

9. It is misnomer to think that the mother, who

is a working woman, and may be living in a rented

accommodation, is somehow unable to look after the

welfare of the child. Considering the fact that many

women have joined the job market, and many women

have professional posts, but they are easily able to

manage the profession with the domestic duties, the

concept of spending 100% of time with their child is a

misplaced concept. To believe that the child would need
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a supervision by the maternal grandmother is to go

back to the olden days when the grandmother was

thought to be the best substitute for a mother. Such

antiquated ideas should disappear in modern days

where women are independent, and intelligent enough

to take their own decision with regard to the welfare of

the child. Even if, the petitioner is a working woman,

even if, she stays in a paying guest accommodation, she

certainly has an interest in the welfare and care of the

child. Thus, there is no need to impose a condition

which may be more burdensome on the petitioner than

is required in this case.

10. A bare perusal of the impugned order clearly

reveals that the learned Family Court has imposed the

said condition ostensibly on the ground that this Court,

in its order, dated 21.12.2017, had imposed the said

condition. However, a bare perusal of the order dated

21.12.2017, passed by this Court clearly reveals that
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this Court has not assigned any reason for imposing the

said condition. Moreover, even after the passing of the

order dated 21.12.2017, the learned Family Court, by

its earlier order dated 16.12.2017, has not imposed any

such condition. Therefore, the imposition of such

condition by the learned Family Court in the present

impugned order, is clearly unjustified.

11. The learned counsel for the respondent has

feebly suggested that the private life of the petitioner

may not be up to the moral standard that is required,

and the child may be exposed to such a private life. But,

these are the factors, which need to be established by

cogent and convincing evidence. Moreover, it cannot be

presumed under law that a mother would be so reckless

as to expose her own young child to the private life,

which would adversely affect the child’s psychology.

Furthermore, merely having the maternal grandmother

around need not necessarily protect her child from
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exposure to any adverse private life. Further, this

contention has not been raised by the respondent while

arguing the application for interim custody. Therefore,

this new plea cannot be raised at this stage.

12. The learned counsel for the respondent has

vehemently contended that the petitioner has not raised

any challenge to the imposition of the condition that the

maternal grandmother must be present while the

petitioner has the interim custody of the child. However,

the said plea is belied by the record itself.

13. In her rejoinder submitted before the learned

Family Court, the petitioner had clearly stated that the

child was traumatized on 17.12.2017, and 09.03.2018,

by the illegal presence of the grandmother Jayalakshmi.

Moreover, in para 27 of the writ petition, the petitioner

has clearly stated that Jayalakshmi is named as

accused No.3 in I.A.No.8 filed by the petitioner, herself,

before the learned Family Court. She has further stated
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that she has filed a police complaint against her own

mother, Jayalakshmi for having mis-conducted, and

having traumatized the child during the interim custody

arrangement on 17.12.2017. According to the learned

counsel for the petitioner, the petitioner is having a

running dispute with her own mother. Therefore, the

petitioner is of the opinion, and is the opinion of this

Court rightly so, that the presence of the maternal

grandmother, Jayalakshmi would adversely affect the

child both emotionally and psychologically. Therefore,

this Court is of the opinion that the condition imposed

by the learned Family Court that “during the interim

custody of the child, Jayalakshmi’s presence is

required”, needs to be deleted from the impugned order.

14. For the reasons stated above, this writ

petition is hereby allowed. The impugned order dated

12.04.2018, is modified as under:

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Firstly, the interim custody is granted to the

petitioner till 09.05.2018 upto 15.00 hours. Secondly,

while the child is in the interim custody of the

petitioner, there is no need that Jayalakshmi should be

present with the petitioner or with the child during the

interim custody period.

Sd/-

JUDGE

Mds/-

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