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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/-