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Smt Dimple Lisa Alvares vs State Of Karnataka on 7 December, 2010

Karnataka High Court Smt Dimple Lisa Alvares vs State Of Karnataka on 7 December, 2010Author: N.Kumar And Nagaraj

I

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 7’1″” DAY OF’ DECEMBER, 2010

PRESENT _ A

THE HONBLE MR. JUS’l’ICl”i3 N

AND :_

THE HONELE MR. JUST£CE.Ai2ALE”NAl(5QflR2fi.J

NJ9NoJ23/2Q10lHCl}E_l=”

EENNEEN 2 a* A

Smt.Dimp1e Lisa Alvares, ‘A ‘

W/o.Vinai Eren Ah/ares.

Aged about 83 years,__

R/a.No.42/2, 61″ Cross,_

Wilson Garden. ‘ * . _

Ba1’1ga1ore+56O 027. H ” ._ .. Petitior1er

(By Jayna KotI’1s;fi,

1. State o1″Ka1{r1ata.ka»,.4

Dépaiitméntlof Hdme Affairs.

_ _Vicih’an_a S,o’–udha,”‘

. Bangalore; 560′ O0 1 ,

‘ Repi*esenteVd””bly its Principal Secretary.

” Eoiii.missioner of Police.

‘ O’f_fi_c~.e”of the Commissioner of Police, ini’a:i..*<.ry Road, Barigalor€~560 O01.

A3. A Xflie State of Karaiiataka.

*- Though the Wilson Garden Police, Wilson Garden, Ba1igalo1’e»56O027′.

(J

4. Vinai Eren Alvares.

S / o.1at:e Denis Sebast’;ia1’1 Alvares. Aged about 37 years.

?resent1y 1*/a.c /o.Mr.Ozwaid &

M1′.Agnes Menezes,

“Revere Mansion, Behind

Canara Bank. Near Ganesh

Theatre, Suntikoppa.

North Coorg District,

Having permanent I

R/a.Masood Real Estate

13 Block Flat No.401,,*

21′”? Floor, Ai–Quasis, K

Sahara Building,

Bur Dubai, UAE,

5. Mrs.Rosy Aivares; ‘ ;

W/o.1ate AMr.Denjs_’_ ‘

Sebastian” Ai_Va1fjes,y

Aged _aboalt” 73.y«ea::s, a

Last’ r/’a_<.Bi-1i3′.i_/Iaeoori. _ ‘

‘Real Ewstaffe-QB’ ‘

Fiat “No . 40 1 22115 “E’_1.ooi’, A1–Q.uasis§ Sahara.”‘Bui1di11.g. Bur Dubai’,”UA}”3. .. Respondents

. fS~.ChanVe1ramou1i, SPF)

*i*1ji-es were is filed under Articles 226 and 227 of i.m:~ Coi’1″si.iti1ti()n of India. praying to direct: the respoiideints to produce the minor child of the petitioner Mas11er’J_)a1lan. Joel Alvares, aged about 5 years, in body

— .enab1i”eg the petitioner to meet him being his natural rnofiher and disclose the whereabouts of Master Dallan ‘~_Joe}”Aivares. the minor son of the petitioner and she be

produced and Custody of the Child be given to the

” “petitioner.

pet:it1’one1′ left: Baroda to Bangaiore leaving 1″;e’i*–~.’chi1d

with her husba1’1d. On a1’riviI1g at on

16.4.2009. she filed 3.11 application L111de_r S_ec’i:i_o.:i V’

P1’oi:eCt.ior1 of Women from I)(;fIieSii(:..VZigét.;’

the Ieained VI Addl. Chief M’et41V9op01ita,’Ii–i.

Bangalore and in the said’V”ipi’.oeeedif1g_. for Custody of the chiidv. ‘-‘¢1i”ter– the said petition, she to Dubai and

met the 411? i3t:_1″.i:;he”Ii%ieiviét;a’;.—-~-gionsulate in Dubai Eifid S0Ug13«.§ The custody was

not 1 June, 2009, she found

that to Baroda by the 5′-31

res4p0’11r,1enta grand-mother of the child. The

to Baroda to take her minor ehild from

.i_:1i%-3__V.5?-M.°i=::s}j.gjfident and she could not succeed. On

filed a complaint under Sections 498A.

V. eiiid 506 of IPC, 1860 and under Sections 3, 4 and

Dowry Prohibition Act before the iearned VI

“”}icidit’iom’1i Chief Met1’op01ita1’1 Magistrate, Baiigalore, :;.o

which was registered as private ec)mplz–1int..'”V, On

22.6.2009, FIR was tiled by the Wilson

St:ation, Complaining of missing; of t.he””..ehilfd.’ “O.t1_

5.10.2009. one more missing

petitioner with the Police

On 22.1.2010, the 4*” at

M’c1I1ga10F€ AirP0I’t ‘fri:}’1″é1 Htzvith him. Again on filed with the

Wilson missing Child of

the petition.eIi:_ll the custody of the a proceeding initiated

before lawsuit No.60/2009 as she

was; natural guardian and mother. In spite of the same,

the minor child has not been handed

oxféx”. {IOllthfixipétitiO11€l’. in those circumstances, she

n1o’t”ed»–.heio’i’e this Court for a writ of habeas corpus.

Learned C()U.1’1S(;’l for the petitioner contended that

it? is settled law that the welfare of the child is

Ellie”/’

1 (1

paramount. consideration. Mere filing of proceedings in

Various courts for Custody of the ehiid would not-.__take

away the jurisdiction of this Court under A:*t:ie1eVV’2-k26V”of

the Constitution of India for securing Child

over the same to the mother, the pet1tioner.;«1’1ei’ein.’7The

child is now missing. She subrr:.i_tt’ed

not in the custody of the it it is it

in the custody of the’:5.P_11 r<_~:’sbondent’,..én’iother¥in–1aW. It is further stated that the sister of

the husband”. “”iiT’.here:forc2L, the Custody of

the pgersonsyilwho:arenot connected with the child and not hisnaturalwpafenVt’s.,_:”Hence, she submits that a Case

for writA of ha:beas”corpus is made out.

A 1

‘ learned State Public Prosecutor

.Ctizi’i”<:IidetVi’j_t’h’at it is a dispute between the husband and

wife, r”1′;}’1e Child is not in iliegal custody. It is in the

ar:u”s”t_ody either husband or grand~inother or sister of the 4″‘?

/”‘ I

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respondent. Therefore. the petition filed for writ of

habeas corpus is not maintainable.

5. Dealing with t.he similar situation. the Apex:

has laid down the law without any

ease of Syed Saleemuddin –Vs– P1*’;’R1.1le:h-sanvla’a1′;cl’Others it

reported in (2001) 5 sec 247, the Apex

as under:

“In an application seeekii1g’*al”*.Vrit of habeas corpus for eustorly of ;H1il1OI’.. “children the principal eonsideratioi-1.»i”f0r _.the_=,e<3urt is to ascertain, Whether. the Custddyl of the ehildrenean. bel sa:.id_fl.to~ble»funlafs}§fiul or illegal and _wiheth’er .the7.wel_fare l ofwthe children

irequireeslth’atthe=.pi*esent custody should be changed’ andfthe..___ehi’ldren should be left in theeare. and ‘eulsteidy of somebody else. The –prineip1.e’ ‘1s”well settled that in a matter of Custody tjfeacthild the Welfare of the child is V df”pa1*amount consideration for the court. In thlerprese_nt ease the High Court has not paid _ ariya ai:t.e’nt:ion to these important and 1’e1ex?ar1ei: questions. The High Court has not (f._(insi«t’le1’ed whether the custody of the ~~ehgiid1’en with their father can, in the facts and Circumstances, be said to be unlawful. The Court. has also not advertecl to the A question whether for the welfare of the children they should be taken out of the custody Of their father and left in the care of

8

their mother. However, it is not: necessary t.o consider this question further in View of the concession made by the counsel that the appellant has no objection If the childreiiflp remain in the Custody of the mother with_.t;’he¢ right. of the father to visit. them as noteci’ V. the judgment of the High Court. till the A Family Court. disposes of the petition 1’i.lvedf_iby

the appellant for custody of..his ch_;1dre’n._’f’. 4′

6. The next judgment. of the .I3rpe2{_’Cour’t_iii1 Rajesh K Gupta —-Vs– Ranil._V:(3opal A’Agaiwval.aA”a:r1d…o’thersV.l’ reported in (2005) 5, sec :35V9″vat’i-.para–‘?,-it held as

under:

“‘7. 3′ It;’is. well»se’t’teled’-vthait; in an application Vse.ekiiig”‘a’1–a;yrit. –._oi’.habeasV_ eorpus for custody {of a ‘miinor 7ehil.d’,’«..the principal consideration “for the to ‘ascertain whether the CL§stody’of ehilld “Can be said to be lawful or illegal aiictjvlietlier the welfare of the child »requires that the present custody should be vc_hanged'”‘an__d___«tl1e child should be left in the bare” and Custody of someone else. It is V ~equa11y~.we11 settled that in case of dispute 1 vb4ety’vee’riV.»the mother and father regarding the ‘ Custendtjr of their Child. the paramount. (:o11.si~deration. is welfare of the child and not ,. the legal right. of either of the parties. It is therefore, to be examined what. is in the best interest of the child Rose Mala and Whether ‘ her welfare would be better looked after if she is given in the eusttody of the appellant, who is her father.”

up

Therefore, it is not possible to hold that as on today the

child is in iiiegai custody.

9. In far the welfare of the child

the facts setout disclose that the petitioneifddhias:jiiitia.ted_« it

I’

4′.

the proceedings under the provisioris’ of

Women From Domestic V,Vio1eri(:e”‘~Act,

initiated the proceedings her.V.h’usbaar§1dVVVunder Sections 498A, 504 and Sections 3, 4 and 6 gf the learned

VI Magistrate at

Ba1’1ga1o1*e’. V ‘iii’-~._Viei2§i*e.to__ofthe said proceedings. her

husband”e..y{ras at Mangalore Airport. The

at_te’mpts were”aiso__.made to arrest the mother of the em

‘ re”s-poi’1_d’er_it.iii-View of the order passed in the proceeding

i_;1itjiat_ed’.v’E5j,I’V:th_et petfiioner before the Dubai Courts for

ctaistodj/§_ of child. In these circumstances, when the cofr’ipet.er1t Courts are seized of the matter and in fact

order has been passed for custody of the child, the

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l “‘._illeg;§al custody and it is in legal custody. Hence, we do

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petitioner has to pursue those remedies and secure the

custody of the child. En fact the statement of objections

filed in the proceedings initiated by the petitioiierltiynder

the provisions of the Protection of

Domestic Violence Act, 2005 an_d…in_thedliyofielllpetitionllll

which is filed by the husband Wife

impression to us that the petitioner” prirna -fac.ie’~appears- V

to have not shown any taldiigyycare of the child. The allegations,’ in those

petitions, alsogizre to that the interest

and vizelflalre woiildl be ‘well protected if the custody__of_ t.he_.lVe:hil§~._y_}j’o1itinues vyith the persons in

Whose éustlody-‘the is at present. Therefore, we are

tvhat thenytrelfare of the child would be protected

child to continue in the custody of the

fa’t:her,__”gra–nd~1nother and in her absence with the sister

..of_t,heV–*Z.IH” respondent. Tlierefore, the child is not in

not see any jLlStifiCE1tiOI] to entertain this habeas _r:.Q3’pus

petition. Aeeo1’ding1y’, it is rejected.

However. we made it clear that the -r,ie’urte””;jef0fe

whom the proceedings are ini€:i’2>1’t.e–d by petivtdiioner

shall decide those Cases on meritezind ‘1″r1_ aec:of.;i’axiee_

with law without in any of ‘

the observations made byA..thieni_:’C6u_rt as ‘theyv are only

prima faeie 0bservatidn;s’ into the legal

evidence on ire’-::(_)’1fd fer .pvtjfpese.

…. ”

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sax:

t FUDGE

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