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Sri. Firoz Khyser vs Smt. Nikhat Kauser on 23 March, 2017

                           1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF MARCH, 2017

                       BEFORE

       THE HON'BLE MR. JUSTICE A.S. BOPANNA

         WRIT PETITION NO.9615/2016 (GM-FC)

BETWEEN:

SRI. FIROZ KHYSER
S/O.LATE MAZRUL HAQ
AGED ABOUT 43 YEARS
R/O. VIJAYAPURA KANNADA
SCHOOL ROAD,
CHICKMAGALORE DISTRICT-577 101       ... PETITIONER

(BY SRI VINOD GOWDA, ADV.)

AND:

SMT. NIKHAT KAUSER
W/O.FIROZ KHYSER
AGED ABOUT 30 YEARS
D/O K.SHARFUDDIN,
MOMIN MOHALLA,
HOLEHONNUR ROAD,
BHADRAVATHI TALUK AND
SHIVAMOGGA DISTRICT-576 101         ... RESPONDENT

(BY SMT. TAJUDDIN, ADV.)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD:18.1.2016 PASSED ON IA NO.1 IN G 
W.C.NO.16/2015 ON THE FILE OF SENIOR CIVIL JUDGE
AND JMFC BHADRAVATHI AS PER ANNEXURE-E AND
DIRECT THE RESPONDENT HAND OVER THE MINOR SON
FOR INTERIM CUSTODY TWICE IN A WEEK.
                                       2



    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
                                ORDER

The petitioner is before this Court assailing the

order dated 18.01.2016 passed on I.A.No.1 in G

W.C.No.16/2015 as at Annexure-E to the petition.

2. The petitioner is the husband of the

respondent. Due to certain disputes in their married life,

they are residing separately. The petitioner herein has

filed a petition under Section 7(1)(a) r/w. Section 10 of

the Guardians and Wards Act, 1890 before the Court

below in G W.C.No.16/2015 seeking that the

petitioner be declared as the guardian of the minor son

of the parties named Mohammed Faizan. In the pending

proceedings, the petitioner herein filed an application in

I.A.No.1 seeking interim custody of the son. By the order

dated 18.01.2016, the application has been disposed of.

Claiming to be aggrieved by the same, the petitioner is

before this Court.

3

3. A perusal of the order dated 18.01.2016

would disclose that the application has not been

considered on its merits and no orders assigning reasons

for the disposal of the application is made. Instead, all

that has been indicated in the order is that the relief as

sought in the application is same as the main petition

and therefore, the application is disposed of.

4. In that background, a perusal of the petition

before the Court below would indicate that the petition is

filed seeking a declaration to be made that the petitioner

is the guardian of the child. In the application, what has

been sought is the interim custody, during the pendency

of the petition. Whether, such custody is to be granted or

not is a matter which is to be considered by the Court

below, based on the objection that is filed by the

respondent and a reasoned order is required to be made.

In the alternative, if the interim custody is not granted

by the Court below, whether the visitation right is to be

granted is also an aspect which is required to be

considered, before passing the orders on the application.
4

Since, such detailed consideration on the application has

not been made, the order dated 18.01.2016 in its present

form would not be justified.

5. Therefore, without expressing any opinion on

the merits of the application in I.A.No.1, the order dated

18.01.2016 is set aside. The application in I.A.No.1 is

restored to the file of the Court below with a direction to

the Court below to take note of the prayer made in the

application and the objection putforth by the respondent

and arrive at a conclusion on the application on its

merits in accordance with law. Such consideration on

the application shall be made in an expeditious manner

but, not later than three months from the date on which

a copy of this order is furnished. All contentions in that

regard are left open.

The petition is accordingly disposed of.

Sd/-

JUDGE

ST

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