Mr Vijaya Mahantesh Mulemane vs State Of Karnataka
2022 Latest Caselaw 3558 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 3RD DAY OF MARCH 2022

                           PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

     THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

                  W.P.H.C. NO.48 OF 2021
BETWEEN:

MR. VIJAYA MAHANTESH MULEMANE
S/O LATE MALLIKARJUNA GOUDA
AGED ABOUT 41 YEARS
PRESENTLY R/O. HATCHOLLI POST
SIRUGUPPA TALUK
BELLARY DISTRICT
KARNATAKA 583 114
ALSO AT.10, CARABOB CRT APT 908
TORONTO, ONTARIO M1T 3N5
CANADA.
                                           ... PETITIONER
(BY MR. MAHESH S, ADV.,)

AND:

1.    STATE OF KARNATAKA
      DEPARTMENT OF HOME
      BY ITS PRINCIPAL SECRETARY
      VIDHANA SOUDAH
      BANGALORE 560001.

2.    THE DIRECTOR GENERAL AND
      INSPECTOR GENERAL OF POLICE
      POLICE HEAD QUARTERS
      NURPATHUNGA ROAD
      BENGALURU 560001.
                               2



3.   COMMISSIONER OF POLICE
     BANGALORE CITY
     INFANTRY ROAD
     BANGALORE 560001.

4.   MRS. ANUPAMA NADAGOUDA
     W/O VIJAYA MAHANTESH MULEMANE
     D/O VENKATRAO NADAGOUDA
     AGED ABOUT 37 YEARS
     R/O NO. R-B5, JAYAMAHAL EXTN
     BENGALURU 560046
     (LAST KNOWN ADDRESS)
     ALSO AT HOUSE NO.29/30
     KHB COLONY
     PWD CAMP RAICHUR ROAD
     SINDHANUR, RAICHUR DISTRICT 584 128.

                                            ... RESPONDENTS

(BY MR. THEJESH P, HCGP FOR R1 TO R3
    MR. KIRAN V. RON, ADV., FOR R4)
                             ---

      THIS WPHC IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN ORDER OR
DIRECTION OR WRIT IN THE NATURE OF HABEAS CORPUS
DIRECTING THE 4TH RESPONDENT TO PRODUCE THE DETENUE
I.E., THE DAUGHTER OF THE PETITIONER KUM.ANVITA
FORTHWITH BEFORE THIS HON'BLE HIGH COURT. ISSUE AN
ORDER EPRMITTING PETITIONER TO TAKE THE CUSTODY OF HIS
MINOR DAUGHTER ANVITA ALONG WITH HIM TO CANADA AS THE
DETENUE ANVITA IS A CITIZEN OF CANADA HOLDING PASSPORT
OF CANADA.

     THIS WPHC COMING ON FOR HEARING,            THIS   DAY,
ALOK ARADHE J., MADE THE FOLLOWING:


                            ORDER

This writ petition has been filed seeking a writ of habeas

corpus for production of Kum.Anvita (hereinafter

referred to as 'the daughter' for short) aged about 10

years and to permit the petitioner to take the daughter

with him to Canada. In order to appreciate the

petitioner's grievance, relevant facts need mention,

which are stated infra.

2. Admittedly, the petitioner is the natural

father of the daughter. The marriage between the

petitioner and respondent No.4 (hereinafter referred to

as 'the respondent' for short) was solemnized as per

Hindu rights and customs on 30.11.2010. On

30.08.2010, civil marriage was performed between the

petitioner and respondent at Toronto in Canada. The

petitioner and the respondent were blessed with a

daughter on 11.02.2012 in Canada. The birth certificate

of the daughter as well as the passport has been issued

by Canadian Authorities.

3. The respondent filed a petition seeking divorce

on 26.05.2017 in superior court of justice at Toronto,

Canada. By an order dated 01.11.2017, the court in

Canada directed that respondent shall have temporary

access to the child. Thereafter, on the basis of consent

furnished by the petitioner, the respondent and the

daughter traveled to India on 25.08.2018 and were

scheduled to depart on 16.10.2018. However, the

respondent made attempts to stop the petitioner from

leaving India with the child and lodged a complaint

against the petitioner for offences under Section 498A,

341, 504, 506 of Indian Penal Code as well as under

Section 3 and 4 of the Dowry Prohibition Act, 1961.

4. The petitioner however, returned to Canada for

professional commitments and moved the court in

Canada apprising the subsequent events which took

place in India. The court in Canada passed an order on

22.11.2018 directing the respondent to return to Canada

with the child and further directing the respondent to

return the custody of the child to the petitioner.

Thereafter, the superior court of Canada passed an

order on 27.11.2018 granted the sole custody of the

child to the petitioner and also directed the respondent

to deliver the daughter forthwith to the petitioner along

with her passport and other documents.

5. The petitioner returned to India on 07.02.2019.

However, the respondent did not permit the petitioner to

interact with the child and refused to hand over the

custody of the child. Thereupon, the petitioner on

14.02.2019, filed a writ of habeas corpus viz., WPHC

No.25/2019, which was disposed of by an order dated

22.12.2020 and it was held that the daughter is not in

the custody and not in the company of the petitioner for

past three years and it would be appropriate that eth

daughter continues to be with the mother for the

present. The said arrangement was directed to continue

till further orders are passed in the proceeding under

Guardians and Wards Act, 1890 and the Family Court,

Bengaluru was directed to deal with the proceeding for

appointment of Guardian without being influenced by

any of the observations made in the order.

6. Thereafter, respondent filed a petition under

the Guardians and Wards Act, 1890 before Family Court,

Bengaluru. The Family court by an order dated

04.02.2021 inter alia held that it had neither territorial

jurisdiction nor any cause of action within its jurisdiction

to maintain the petition. Accordingly, the same was

dismissed. The petitioner thereafter filed this petition

seeking a writ of habeas corpus on 20.04.2021. Being

aggrieved by order dated 04.02.2021, the respondent

filed an appeal viz., M.F.A.No.2863/2021, which has

been dismissed with costs by a bench of this court by

judgment dated 14.12.2021.

7. Learned counsel for the petitioner submitted

that orders have been passed against the respondent by

the Superior Court of Justice in Canada regarding

custody of the daughter and she was granted only

temporary access to the child. It is also urged that the

Superior Court of Justice in Canada has passed an order

directing sole custody of the child in favour of the

petitioner. It is also urged that the proceeding under

Guardian and Wards Act initiated by the respondent has

been dismissed by the Family Court and the aforesaid

order has been affirmed by this Court in MFA

No.2863/2021 vide order dated 24.12.2021. It is

submitted that petitioner has taken care of the daughter

in Canada and respondent is in live in relationship with

her partner.

8. It is also submitted that petitioner is employed

and shall take care of the daughter. It is also submitted

that Canada would provide conducive atmosphere as

well as a bright future to the girl child. It is further

submitted that there is infrastructure available in

Canada to enable the petitioner to look after the

daughter. However, it is fairly admitted by the learned

counsel for the petitioner that since 5.8.2018 the child is

in India and the petitioner has only met her once on

05.07.2021 in Bengaluru. In support of aforesaid

submission, reliance has been placed on the decision of

the Supreme Court in 'YASHITA SAHU Vs. STATE OF

RAJASTHAN AND ORS.' AIR 2020 SC 577, 'LAHARI

SAKHAMURI Vs. SOBHAN KODALI' AIR 2019 SC

2881, 'V.RAVICHANDRAN Vs. UNION OF INDIA &

ORS.' (2010) 1 ACR 231 (SC), 'NILANJAN

BHATTACHARYA Vs. THE STATE OF KARNATAKA

AND ORS.' IN WP(HC) NO.93/2019 DISPOSED ON

07.04.2020.

9. On the other hand, learned counsel for

Respondent has submitted that the affidavit filed by the

petitioner discloses that the petitioner is not in

employment for the past two years and is in India. It is

also submitted that the mother-in-law of Respondent is

aged about 80 years and the petitioner lacks female

support system in Canada to support the minor

daughter, it is also urged that against the order dated

14.12.2021 passed in MFA No.2863/2021, the

Respondent has filed SLP before the Supreme Court

which is pending. It is further submitted that minor

daughter is agaed about 10 years and is a student of

Vishwavidyapeeth, Yelahanka, Bangalore. It is also

urged that the daughter is residing in India for the past

about 3 years i.e., since, 25.08.2018 and has developed

roots. It is contended that the principle of comity of

courts has to yield to interest and welfare of the child.

10. It is submitted out that the Respondent is

presently not employed and is a house wife and is

residing with her parents and devotes time and attention

to the welfare of the child. It is pointed out that the

Respondent has an annual rental income of

Rs.8,00,000/-. It is also contended that the academic

session in Canada begins from Attention of this court

has also been invited to the undertaking contained in

the affidavit filed on behalf of the respondent and it has

been stated that respondent would live with her parents

and would not be in touch with her partner viz.,

Mr.Sanjeev Marathe and shall also not expose the

daughter to any interaction with the aforesaid

Mr.Sanjeev Marathe. It is also pointed out that the

petitioner had met the daughter only on two occasions

during the pendency of this proceeding. It is also urged

that in the facts and circumstances of the case, and

taking into account the age of the daughter, the

daughter should be allowed to remain in the custody of

the respondent. In support of aforesaid submissions,

reliance has been placed on decision of the Supreme

Court in 'NITHYA ANAND RAGHAVAN VS. STATE

AND ANOTHER', (2017) 8 SCC 454, 'KANIKA GOEL

VS. STATE OF DELHI AND ANOTHER', (2018) 9 SCC

578, 'LAHARI SAKHAMURI VS. SOBHAN KODALI',

(2019) 7 SCC 311, 'SARITA SHARMA VS. SUSHIL

SHARMA', (2000) 3 SCC 14.

11. We have considered the submissions made

on both sides and have perused the record. A Three

Judge Bench of Supreme Court in NITHYA ANAND

RAGHAVAN supra inter alia has held that principle of

comity of courts cannot be given primacy of more

weightage for declining the matter of custody or return

of the child to the native state. Similar view was taken

in LAHARI SAKHAMURI supra and it was held that

Doctrine of Comity of Courts cannot override the best

interest and welfare of the child. Similar view was taken

in 'TEJASWINI GAUR VS. SHEKAR JAGDISH

PRASAD', (2019) 7 SCC 42I and YASHITA SAHU VS.

STATE OF RAJASTHAN', (2020) 3 SCC 67. The

supreme court in SARITA SHARMA supra has held that

ordinarily a female child should be allowed to remain

with the mother so that she can be properly looked

after. Similarly, in NITHYA ANAND RAGHAVAN supra,

the Supreme Court has held that custody of the girl child

may be ordered to be taken away from her mother for

being given to any other person including the father of

the child only in exceptional situation.

12. However, the issue pertaining to the best

interest and welfare of the child has to be answered in

the facts and circumstances of each case. Admittedly,

the daughter was born on 11.02.2012 in Toronto in

Canada. It is also not in dispute that the daughter is

residing with respondent in India since, 25.08.2018 i.e.,

for nearly three and half years and has developed roots

here. The daughter is student of Vishwavidyapeeth,

Yelahanka, Bangalore and is student of 4th Grade.

13. The petitioner claims to have been employed

in Canada. He lives alone in Canada. In case, the

custody of the daughter is given to the petitioner, she

will have to live alone with the petitioner in Canada.

The daughter is residing with her mother for past more

than three and half years along with her grand parents

which is conducive to her overall growth. The mother is

a house wife and is in a position to devote time to take

care of the daughter. She has also an annual rental

income of Rs.8 Lakhs. If the custody of the daughter is

given to the petitioner, at this point of time it will

suddenly and abruptly disturb the child's daily routine

and the education as the academic session in Canada

starts in September.

14. So far as submission made by learned

counsel for the petitioner that in view of the orders

passed in the superior court in Canada, the custody has

to be given to the petitioner, suffice it to say that

principles of comity of courts must yield to best interest

and welfare of the minor. Needless to state that the

parties shall be at liberty to prosecute their remedies in

the facts and circumstances of the case. In our opinion,

it is in the best interest of the child that she should be

allowed to stay with the respondent in India, in view of

undertaking given by respondent before this court that

she will stay with her parents, till the issue pertaining to

her custody is finally adjudicated.

15. The parent who is denied the custody of the

child should have access to the child especially when

both the parents live in different countries. The parents

are under an obligation to provide for an environment

which is reasonably conducive to the development of the

child. It is in the best interest of the child to have

parental care of both parents if not joint atleast

separate. Therefore, bearing in mind the best interest of

the child and in the obtaining factual matrix, following

directions are issued:

(i) The petitioner is entitled to communicate with

the child through phone / video call / skype at any time.

(ii) The respondent shall provide the school

calendar of the child with the list of holidays along with

dates of examination to the petitioner.

(iii) The respondent shall keep the petitioner

informed about the day to day developments of the

daughter on weekly basis and the aforesaid

communication will be sent to the petitioner on a

Sunday every week.

(iv) The petitioner shall be at liberty to meet the

child after intimation to the respondent. During the

period of stay of petitioner in India, he shall be at liberty

to meet the daughter on 1st and 3rd Sunday of every

month and shall be entitled to take custody of the

daughter from the respondent at 11.00 a.m. and shall

hand over the custody of the daughter to respondent a

5.00 p.m.

(v) The respondent shall not require the child to

have any interaction with aforesaid Mr.Sanjeev Marathe.

It is clarified that observations / findings in this

judgment have been made for the purposes of deciding

the controversy in this petition and would have no

bearing on any other proceeding, which has to be dealt

with on its own merit.

With the aforesaid directions, the petition is

disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS