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Karnataka High Court
Sri. Rajesh C.P vs The State Of Karnataka on 23 February, 2024
Author: K.Somashekar
Bench: K.Somashekar
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WPHC No. 47 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
PRESENT
THE HON’BLE MR. JUSTICE K.SOMASHEKAR
AND
THE HON’BLE MR. JUSTICE UMESH M. ADIGA
WRIT PETITION HABEAS CORPUS No. 47 OF 2023
BETWEEN:
1. SRI. RAJESH C.P
S/O LATE PUTTEGOWDA B
AGED ABOUT 34 YEARS,
R/AT NO.87, 5TH CROSS,
NEAR SRI KRISHNA TEMPLE STREET,
DWARAKANAGAR,
HOSAKEREHALLI
BSK III STAGE,
BANGALORE SOUTH TALUK
BANGALORE-560085
…PETITIONER
(BY SHRI. D.R. RAVISHANKAR, SENIOR COUNSEL
FOR SHRI. S. LAKSHMINARAYANA.,ADVOCATE)
AND:
Digitally signed
by D HEMA
1. THE STATE OF KARNATAKA
Location:
HIGH COURT REPRESENTED BY PRINCIPAL SECRETARY,
OF DEPARTMENT OF HOME,
KARNATAKA ROOM NO.219, II FLOOR,
VIDHANA SOUDHA
BENGALURU – 560 001
2. THE COMMISSIONER OF POLICE
NO.2, ALI ASKER RD
VASANTH NAGAR
BENGALURU – 560 051
3. DEPUTY COMMISSIONER OF POLICE
JAYANAGAR SUB DIVISION
BANGALORE SOUTH
SOUTH END CIRCLE
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WPHC No. 47 of 2023
BANGALORE – 560 004
4. THE ASSISTANT COMMISSIONER OF POLICE
JAYANAGAR SUB DIVISION,
BANGALORE SOUTH
SOUTH END CIRCLE
BENGALURU – 560 004
5. THE STATION HOUSE OFFICER
INSPECTOR OF POLICE
GIRINAGARA POLICE STATION,
GIRINAGARA
BANGALORE – 560 085
6. SRI K SHIVARAMU
S/O SRI T KENCHEGOWDA
AGED ABOUT 57 HEARS,
7. SMT SHASHIKALA
W/O SRI K SHIVARAMU
AGED ABOUT 50 YEARS,
BOTH R6 AND R7 ARE
R/AT KERETHONNUR VILLAGE,
KASABA HOBLI,
PANDAVAPURA TALUK
MANDYA DISTRICT
KARNATAKA – 571 434
…RESPONDENTS
(BY SHRI. M.V. ANOOP KUMAR, HCGP FOR R1 TO R5
SHRI. H.C. SHIVARAMU, ADVOCATE FOR
SHRI. N. SURENDRA KUMAR, ADVOCATE FOR R6 TO R7)
THIS WPHC IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO a) ISSUE A WRIT OF HABEAS
CORPUS TO DIRECTING THE RESPONDENTS NO.1 TO 7 TO
IMMEDIATELY PRODUCE THE BABY NAMED I.E. ADITIRI BEFORE
THIS HONBLE COURT. b) TO DIRECT RESPONDENTS TO
PRODUCTION OF BABY NAMED I.E. ADITIRI AGED ABOUT TWO AND
HALF YEAR BEFORE THIS HONBLE COURT AND HAND OVER THE
DETENUE TO THE LEGAL CUSTODY OF THE PETITIONER AND ETC.
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WPHC No. 47 of 2023
THIS WPHC HAVING BEEN HEARD AND RESERVED ON 5 TH
FEBRUARY 2024, COMING ON FOR PRONOUNCEMENT OF ORDERS,
THIS DAY, UMESH M ADIGA J, PASSED THE FOLLOWING:
ORDER
This writ petition is filed under Articles 226 and 227
of Constitution of India seeking the following relief:
i. To issue a Writ of Habeas Corpus directing the respondent
Nos.1 to 7 to immediately produce the baby by name i.e.,
Aditri before this Hon’ble Court.
ii. To direct respondents to production of the baby named
i.e., Aditri aged about two and half year, before this Hon’ble
Court and hand over the detenue to the legal custody of the
petitioner.
iii. To Direct respondent No.3 to take action against the
complaint filed by petitioner.
d) And grant such other further reliefs as this Hon’ble
Court deems fit to grant under circumstance of the case.
2. It is the case of the petitioner that he has
married the daughter of respondent Nos.6 and 7, namely
Nityashree on 09.10.2019, in accordance with Hindu
rituals and customs. Out of the said wedlock, they have a
female baby by name ‘Aditri R’ who is born on
13.08.2020. The said child was looked after by her
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mother-Nityashree, till her death. Smt.Nityashree had
committed suicide by hanging, on 22.10.2021. The
respondent Nos.6 and 7 has lodged complaint against the
petitioner and members of his family to the jurisdictional
police. On that basis, Girinagar Police registered a case in
Cr.No.187/2021 against the petitioner and members of his
family for the offence punishable under Sections 498A,
304B of Indian Penal Code R/W Section 3 and 4 of the
Dowry Prohibition Act.
3. It is further case of petitioner that the
petitioner was arrested in Cr.No.187/2021 and he was in
judicial custody till he was released on bail on 15.07.2022,
by the Sessions Court, Bengaluru. When the petitioner
was in judicial custody, respondent Nos.6 and 7 have
taken custody of daughter of petitioner Kum. Aditri aged
about 2 ½ years. After the release of the petitioner from
the judicial custody on bail, the petitioner lodged
complaint in the jurisdictional Police Station against
respondent Nos.6 and 7 in Cr.No.384/2022 for the custody
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of his child. However, they did not take any action to
secure the custody of minor baby of petitioner. In view of
these reasons, he is forced to file writ of Habeas Corpus to
produce the child from the custody of respondent Nos. 6
and 7. It is also the contention of the petitioner that
respondent Nos.6 and 7 with an intention to grab the
properties have filed suit in O.S.No.4633/2022 on the file
of Additional City Civil and Session Judge, Bengaluru for
the relief of partition.
4. It is the further case of petitioner that the
petitioner is the natural father of minor girl and he is
legally entitled for the custody of the said minor girl under
the Hindu Minority and Guardianship Act, 1956. He is an
advocate and serving in Muthoot Fincorp, Bengaluru and
earning sufficient income to maintain the minor child. The
petitioner is emotionally attached to his daughter and he
would do anything and everything to protect the interest
of the minor. Moreover respondent Nos.6 and 7 are not
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the legal guardian of Kum.Aditri. With these reasons,
prayed to allow the petition.
5. It is the case of Respondent Nos.6 and 7 that
due to torture and harassment, their daughter Smt.
Nithyashree, wife of petitioner had committed suicide on
22.10.2021. After her death, they filed complaint against
the petitioner and others. In the said case, petitioner and
member of his family were arrested and detained in the
judicial custody. The relatives and well wishers of both
the petitioner and respondent Nos.6 and 7 requested
respondent Nos.6 and 7 to look after the minor daughter
of the petitioner. Accordingly, respondent Nos.6 and 7
took the custody of their minor grand daughter, Kum.
Aditri. Now they have also admitted the child Kum.Aditri
to Anganavadi Centre in their native place. Both
respondent Nos.6 and 7 are taking care and welfare of
Kum. Aditri.
6. It is the further case of respondent Nos.6 and 7
that the petitioner along with his brother and sisters have
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been trying to dispose of the joint family property in order
to deprive the legitimate share of the minor baby Aditri.
Therefore, helplessly, on behalf of Kum. Aditri, respondent
No.6 has filed O.S.No.4633/2022 for partition and
separate possession of joint family property of petitioner
baby Aditri. In the said suit, they have also obtained
interim relief of temporary injunction restraining the
petitioner and others from alienating the said property.
7. The petitioner ignoring all these facts, and
suppressing real facts, has filed a false complaint,
contending that respondent Nos.6 and 7 have kidnapped
the said minor from his custody. The petitioner was in
judicial custody from October, 2021 till 17.05.2022,
between the said period none of the relatives of the
petitioner came forward to look after the Kum.Aditri. The
petitioner being ungracious person, made false allegations
against respondent Nos.6 and 7 that they have taken
forceful custody of the Kum. Aditri. They also
apprehended that petitioner and members of his family
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may not look after Kum. Aditri properly. With malafide
intention, this petition is filed. With these reasons, prayed
to reject the application.
8. We have heard the arguments of learned Senior
Counsel Sri. D.R. Ravishankar, for the petitioner and Sri.
H.C. Shivaramu, learned counsel for respondent Nos.6 and
7 so also learned High Court Government Pleader on
behalf of the State. Both side advocate for petitioner and
Respondents No.6 and 7 have urged grounds made out in
the petition and counter in their respective arguments.
9. Learned Senior counsel for the petitioner has
relied on the following judgments:
Criminal appeal No.838/2019
O. Ulaganathan Vs. K.R.G. Chandrashekar
others 1993(2) MLJ 201
Velan Vs G. Muthu others
(1992)DMC 167Kulwant Singh Vs State of Harayana others
CRWP NO.1485/2021Rajeswari Chandrashekar Ganesh Vs State of
Tamil
Nadu others 2022 (SC) 605S.Rama Iyer Vs. K.V. Nataraja Iyer
Equivalent Citations (1948)1 MLJ 125Ankur tripathi Alias Tinnu Vs. Sri. Radhey
Shyam Pandey and other
Manjula Malini Seshachalam Vs. Vijay
Thirugnanam WPHC No.13/2018
Vinay Tripathi others Vs. State of U.P
others
Palchuri Hanumayamma Vs. Tadikmalla
Kotlingam others
2001(8) SCC 552.
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10. The following points are not in dispute:
That the daughter of respondent Nos.6 and 7
Smt. Nityashree was married petitioner and the
said marriage was performed on 09.10.2019.
From the said wedlock Kum. Aditri was born on
13.09.2020. Smt. Nityashree died unnatural
death on 22.10.2021 and in this regard, the
criminal case was registered against the
petitioner on the complaint of respondent Nos.6
and 7.
Petitioner was arrested and detained in the
judicial custody in Crime No.384/2022 at
Girinagara Police Station from the date of his
arrest till 15.07.2022.
When the petitioner was in custody, none of
the relatives of petitioner came forward to take
custody of the minor child Kum.Aditri, who was
aged 2 ½ years.
This petition is filed on 07.06.2023 nearly
about a year after petitioner was released from
judicial custody.
Respondent Nos.6 and 7 are grandparents of
Kum. Aditri and after the death of Smt.
Nityashree, she has been in custody of
respondent Nos.6 and 7.
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Respondent No.7 is acting as a guardian on
behalf of Aditri and filed a suit in
O.S.NO.4633/2022 in the Court of City civil and
Sessions Judge, Bengaluru for relief of partition
in respect of joint family property, which is said
to be belonging to the petitioner and also
challenged the Gift Deed dated 29.03.2021
executed by deceased B. Puttegowda and his
wife in favour of their son Kiran Kumar and the
order of Temporary Injunction was also
obtained in the said case.
Respondent Nos.6 and 7 have filed petition in
the Civil Court under the provisions of the
Hindu Minority and Guardianship Act, 1956
seeking custody of Kum.Aditri and said petition
is pending consideration before the competent
Court. Petitioner herein did not appear in the
said case though notice was duly served and he
has knowledge of pendency of the said case.
11. In this writ petition, it is contended by the
petitioner that respondent Nos.6 and 7 have illegally
obtained the custody of his child Kum. Aditri and illegally
detained her in their custody. During the course of the
arguments, it is not in dispute that since petitioner was in
judicial custody and there were nobody to look after the
minor child and hence respondent Nos.6 and 7 on the
advice of well wishers ready to take the responsibility of
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the child and took her to their custody. It is not the
contention of the petitioner that respondent Nos.6 and 7
are not looking after Kum.Aditri properly and they have no
means to look after the minor. No allegation is made
against them regarding care and custody of the minor.
Even the minor is admitted to the School (Anganavadi). It
is clear from the contention of both the parties that
Kum.Aditri is not illegally detained by respondent Nos.6
and 7.
12. In this Habeas Corpus petition filed under
Articles 226 and 227 of Indian Constitution, this Court
cannot decide the issue of right of the party to have
custody of minor child or to decide the said rights. A
detailed trial has to be conducted by recording the
evidence of the parties etc., and to ascertain as to who is
the competent person to take custody of the minor and to
protect the interest of the minor. It is settled law that in
any such dispute, more than the rights of the parties,
welfare of the minor is utmost important.
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13. It is not in dispute that respondent Nos.6 and 7
have already filed a petition before the competent court,
claiming the custody of the minor. The petitioner should
have appeared in the said case and contested the matters
and claimed the custody of the minor or he himself would
have filed the petition before the competent court, seeking
custody of the minor. He did not approach the Civil
Court/Family Court seeking the custody of the minor and
approached this Court under the extra-ordinary
jurisdiction of Articles 226 and 227 of Indian Constitution
seeking relief of Habeas Corpus.
14. It is not disputed by the petitioner that his wife
and mother of Kum.Aditri, died unnatural death. After her
death, the petitioner was arrested and detained in the
judicial custody till 15.07.2022 in a criminal case
registered on the basis of complaint lodged by respondent
No.6. It is not the case of the petitioner that when he was
in judicial custody, some of his relatives were taking care
of the minor child Kum. Aditri. Nothing is mentioned in
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the petition regarding the custody of minor child
Kum.Aditri, when petitioner was in judicial custody. It is
not in dispute that Kum. Aditri has been in care and
custody of respondent Nos.6 and 7 after arrest and
detention of the petitioner in judicial custody, till this day.
It is also not the contention of petitioner that he has been
paying any amount to respondent Nos.6 and 7 for looking
after Kum.Aditri or to meet the expenses of his daughter.
15. In the petition, petitioner has not disclosed as
to whether there is anybody in his house or any female
member of his family, who could take care of the minor
child Kum.Aditri. According to his contention, he is
serving in Muthoot Fincorp. If he is attending to his office
work, then who would look after and take care of the said
minor, who is hardly aged 2 ½ years, is not explained. It
is not disclosed in the petition regarding health condition
of mother of the petitioner and whether she is in a
position to take care of Kum.Aditri. If there is nobody to
look after the said minor child, aged about 2 ½ years,
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then how far the petitioner is able to look after the said
minor daughter, is not explained in the petition or by filing
an affidavit in this regard.
The said minor Kum. Aditri has been in the custody
of respondent Nos.6 and 7 for past about two years and
she has been adjusted to the company of her maternal
grand parents. If she is suddenly withdrawn from the said
company, it may cause depression in the mind of the said
minor girl. In view of the said reason, it is very much
necessary for the petitioner to disclose as to how he would
take care of his minor daughter. These facts need to be
decided after recording the evidence of both the parties, in
the pending GWC proceedings before the Civil Court
under the Hindu Minority and Guardianship Act, 1956.
16. It is contended by the petitioner that he is
having lucrative income by working in the said Muthoot
Fincorp, Bengaluru, but mere having funds is not
sufficient. The child aged about 2 ½ years needs love,
affection and care through out the day. Respondent Nos.6
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and 7 are none other than the maternal grand parents of
Kum. Aditri. She was said to be admitted to Anganavadi
Centre and they are also ready to take care of the said
minor.
17. It is not in dispute that after death of wife of
petitioner, respondent Nos.6 has lodged complaint against
the petitioner for which criminal case has been registered
against the petitioner and his family members. They were
arrested. They were in judicial custody. Due to the same,
it appears relationship between them may not be cordial.
Thereafter, on behalf of Kum. Aditri, respondent No.6 has
filed suit O.S.No.4633/2022 for partition, on the ground
that to defeat the rights of minor daughter, petitioner and
the members of his family are trying to alienate/transfer
property belonging to joint family. It might have added
salt to injury to the relationship between petitioner and his
family with respondent Nos.6 and 7. Under these
circumstances, how the members of the family of the
petitioner would receive the minor girl is also difficult to
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assess. If custody of the minor is given without detail
assessment of facts and circumstances, then petitioner,
who is a natural guardian of the minor may withdraw suit
filed on behalf of minor in O.S.No.4633/2022 and
members of his family may dispose of the property.
Looking to all these facts and circumstances, it is just and
necessary that parties shall approach the Civil Court,
wherein GWC case is pending and seek the custody of
minor child. In the writ proceedings, all these facts
cannot be decided, since it is summary trial proceedings.
18. Let us scan the judgments relied by the learned
advocate for petitioner:
In the case of TEJASWINI GAUR VS. SHEKHARA
JAGADISH PRASAD TIWARI AND OTHERS1, In this
case, wife of the petitioner died due to cancer and
petitioner was suffering tuberculosis. He was admitted in
the hospital and was taking treatment for the said disease.
During the said period, appellant was taking care of the
1
Judgment of Apex Court in Crl.A.No.838/2019 dt: 06.05.2019
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WPHC No. 47 of 2023child. Father of the minor child sought for the custody of
minor child by filing criminal writ petition(Habeas Corpus)
before the Bombay High Court, directing the appellant’s to
handover minor child to the father. The Bombay High
Court considered the said writ petition and allowed the
same. The said order was challenged before the Hon’ble
Supreme Court by the custodian of the child and the
Hon’ble Supreme Court confirmed the judgment of the
Hon’ble High Court and directed the appellants to
handover the custody of the child to its father.
19. In the case of Rajeswari Chandrashekar
Ganesh Vs State of Tamil Nadu Others2, this case is
also pertaining to child’s custody. In this case, it is held
that the employment of the writ of Habeas Corpus in child
custody cases is not pursuant to, but independent of any
statute. The jurisdiction exercised by Courts, , rests in
such a cases, on its inherent equitable powers and exerts.
The force of the State, as parent, patriae, for protection of
2
2022 Live Law (SC) 605
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its minor ward and the very nature and scope of inquiry
and the results sought to be accomplished call for the
exercise of the jurisdiction of the Court of equity. The
primary object of the Habeas Corpus petition as applied to
minor children, is to determine in whose custody the best
interest of the child will probably be advanced.
20. In the case of KM. SUNITHA AND OTHERS
VS SMT. SHYAM KALI3. In this case two minor sons
represented by their father, filed custody of the children
from step mother of deceased mother of minors and the
father had also married for second time after death of his
wife (mother of minors). The High Court of Allahabad
considering facts in detail and law on the subject, allowed
the petition and directed respondents of that case to hand
over the custody of minors to their father.
21. In the case of SRI. O. ULAGANATHAN VS.
K.R.G. CHANDRASHEKAR OTHERS, in this case father
3
AIR 1982 ALL Page 1
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had filed writ of Habeas Corpus, directing Parents-In-Law
to handover the custody of the minor to the father and the
mother died due to accidental burn injuries and the father
was under treatment. Thereafter, Parents-In-Law of the
petitioner had taken the custody of the minors from the
parents of the petitioners, when the petitioner was under
the treatment. The Madras High Court, relying on various
judgments of Hon’ble Supreme Court and also the High
Court, held that father is entitled for custody of the
minors. In all the above decisions cited at the Bar by the
learned counsel appearing for petitioner, the welfare and
paramount interest of the minors alone are considered in
deciding the issue in question.
22. In the remaining decisions referred above,
relied by learned counsel for the petitioner, rendered by
the other High Courts, are in the similar lines. In all the
above said cases, custody of the minor children were
ordered to be given to natural guardian in the petition
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filed under Habeas Corpus. There is no need to mention
them in detail.
23. In the above said cases, relied by the learned
advocate for petitioner, the question involved in those
cases is who is legally entitled for the custody of the minor
child? Looking to the peculiar facts and circumstances of
the present case, there are certain complications, which
are narrated supra recording of evidence of both the
parties is necessary to ascertain in which hands the minor
is safe and her interest would be protected. That cannot
be decided in this petition. Already petition is said to be
filed under Hindu Minority and Guardianship Act by
respondent Nos.6 and 7. In such petition, both the parties
could agitate their rights. In view of peculiar facts and
circumstances involved in this case, the principle of law
laid down in the aforesaid judgment is not applicable.
24. The learned counsel for respondent relied on the
judgment reported in 2006 (2) MLJ Crl.82 in the case of
R. SURESH KUMAR VS. K.A. KALAVATHI. In this case,
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it is held by Madras High Court, Habeas Corpus is not
maintainable seeking custody of the minor child. The
facts are different in the said case. Because the dispute
between the husband and wife and minor children were in
the custody of the mother. Therefore, it is held that, such
dispute should be decided by the competent Civil Court
and not under the Habeas Corpus, that is not the fact in
the present case.
25. AIR 1992 Patna, 76 in the case of VIMALA
DEVI VS. SUBHAS CHANDRA YADAVA. In the said
case, it is held that if the father was alleged to be
murdered mother of the minor and in that event normal
rule that father is a guardian need not be followed.
Appreciating the evidence available on record, the Patna
High Court found that welfare of the minor daughter would
not be protected by the father, therefore, held that he is
not entitled for the custody.
26. AIR 2002 Rajasthan Page No.148 in the case of
GOVARDHAN LAL AND OTHERS VS. GAJENDRA
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KUMAR AND OTHERS. In this case, father sought for
custody of minor boy aged 14 years, who was in the
custody of grandparents. After the death of his mother,
when he was just 3 months old; his maternal
grandparents have taken him and have been looking after
him. When Court enquired the said boy, he inclined live
with his maternal grandparents. Father contacted second
marriage and out of the said marriage he has a daughter.
Considering these facts, the Court upheld the opinion of
the minor and permitted him to be in the custody of his
maternal grandparents.
27. Kum. Aditri is in custody of respondents No.6
and 7 for last about two years and minor is said to be
comfortable in their hands. Hence, it is not proper to
consider and decide all these facts, in this proceedings. In
the interest of the minor, she shall continue to be in
custody of the respondent Nos.6 and 7 till rights of both
the parties are decided by the competent Civil Court.
However, petitioner being the natural father of minor, has
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love and affection towards his daughter. Therefore, he
shall have visitation rights to meet Kum. Aditri, once in a
week on every Sunday, between 9.00 a.m. to 8.00 p.m.
28. Considering the contentions of both side, we
deem it appropriate to direct the Civil Court, wherein
GWC is pending, to expedite disposal of the same,
uninfluenced by the observations made in this order.
29. For the aforesaid discussions, we pass the
following:
ORDER
i. The petition is dismissed.
ii. The custody of minor child Kum. Aditri,
aged about 2 ½ years shall be continued
with respondent Nos.6 and 7 till the said
right is decided by the competent Civil
Court, wherein the petition has been filed by
respondent Nos.6 under Hindu Minority and
Guardianship Act, 1956. Petitioner is given
visitation right once in a week on every
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WPHC No. 47 of 2023Sunday between 9.00. a.m to 7.00 p.m., till
disposal of the said petition.
iii. Both the parties are directed to co-
operate for the early disposal of petition filed
under the Hindu Minority and Guardianship
Act, 1956, pending before competent Civil
Court. The said Court is directed to expedite
disposal of this case at the earliest,
uninfluenced by the observations made in
this order.
Sd/-
JUDGE
Sd/-
JUDGE
AG
List No.: 1 Sl No.: 18
