Karnataka High Court

Mr Ashish Agrawal vs Mrs Ashima Agrawal on 31 May, 2022

Bench: S.G.Pandit

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 31ST DAY OF MAY, 2022

                       BEFORE

       THE HON' BLE MR. JUSTICE S.G. PANDIT

        WRIT PETITION No.24411/2021 (GM-FC)

BETWEEN:
MR.ASHISH AGRAWAL
AGED 50 YEARS,
S/O SHRI SHASHI KUMAR VAISH
NO.1-702, MANTRI TRANQUIL APARTMENTS
OFF KANAKAPURA ROAD
GUBBALALA, BENGALURU-560061.                 ...PETITIONER

            (BY SRI.A.RADHAKRISHNAN, ADV.)

AND:
MRS.ASHIMA AGRAWAL
AGED 46 YEARS
D/O SHRI PAWAN KUMAR JAIN
R/AT No.I-905
MANTRI TRANQUIL APARTMENTS
OFF KANAKAPURA ROAD
GUBBALALA, BENGALURU-560061.             ...RESPONDENT

           (BY SMT.BHARATHI PATIL, ADV. FOR
              SRI.RAHUL CARIYAPPA., ADV.)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE
IMPUGNED ORDER PASSED BY LEARNED II ADDL. SENIOR
CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU
DATED 27.10.2021 I.A NO.II IN M.C.NO.330/2019 ANNEXURE-F
AND RENDER JUSTICE AND ETC.,.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-
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                       ORDER

The petitioner is before this Court under Article

227 of the Constitution of India assailing the order

dated 27.10.2021 on I.A.No.2 in M.C.No.330/2019

passed by the learned II Additional Senior Civil Judge,

Bengaluru Rural District, Bengaluru on which the

petitioner's request for modification of visitation rights

granted by order dated 29.03.2021 is rejected.

2. Heard the learned counsel

Sri.A.Radhakrishnan for the petitioner and the learned

counsel Smt.Bharathi Patil for the respondent. Perused

the writ petition papers.

3. Learned counsel for the petitioner would

submit that the petitioner initiated proceedings against

the respondent-wife under Section 13[1][i][i-a] of the

Hindu Marriage Act, 1955 ['Act' for short] seeking for a

judgment and decree of divorce in M.C.No.330/2019 on

the file of the II Additional Senior Civil Judge,

Bengaluru Rural District, Bengaluru [Family Court]. It

is submitted that the petitioner also filed I.A.No.1 under

Section 26 of the Act praying interim custody and for

visitation rights of minor daughter Arushi who is in the

custody of the respondent. The Family Court on

consideration of the application by its order dated

29.03.2021 passed the following order:

• "The petitioner and his family members are permitted to visit and meet his daughter who is the custody of respondent.

• The petitioner and his family members are permitted to visit the child on every Sunday from 10.00 A.M. to 5.00 P.M.

• The respondent and her family members are directed to permit the petitioner and his family members for visiting the child.

     •     Further, the family members of the
           petitioner   and        respondent   should

behave cordially without hurting each others' sentiments and also without disturbing the atmosphere of the house and the locality.

• Further, the care should be taken by the petitioner to see that, his visit would enhance the over all wellbeing of the child.

Any violations by either of the parties in the above terms should be reported to the court immediately.

Call on 15.04.2021."

4. Learned counsel for the petitioner submits

that thereafter, the petitioner filed an application for

modification of the condition No.2 imposed in the order

dated 29.03.2021 and seeking permission to spend time

with his daughter by taking her to his house and also

for shopping with his daughter. The said application is

rejected under the impugned order dated 27.10.2021 on

the ground that the Court could not interfere and direct

the child to act in a particular way and further on

consideration of school, study aspects of the child and

also considering the pandemic situation, the Court

thought that it would be at risk to meet the child on

every Saturday within the Court premises. Learned

counsel for the petitioner would submit that being a

father, the petitioner has right to visit the child and for

custody of the child. It is his submission that the

respondent is not allowing to meet the child even

though the Family Court has permitted the petitioner to

meet his daughter. Further, the learned counsel would

submit that even though the Family Court has

permitted the petitioner to visit the daughter on every

Sunday from 10.00 A.M. to 05.00 P.M., there is no

cooperation from the respondent-wife for the same in

their apartment or premises. Therefore, the learned

counsel would submit that the petitioner would visit his

daughter either at the Court premises or at Mediation

Centre. Further the learned counsel would submit that

the petitioner has a right for custody of the minor

daughter during the summer and other vacations. Thus,

he prays for modification of the order and to permit the

petitioner to visit the minor daughter at Mediation

Centre.

5. Per contra, learned counsel Smt.Bharathi

Patil for the respondent-wife submits that the daughter

is aged 17 years and she is not interested to meet the

petitioner-father. Learned counsel inviting attention of

this Court to the observation of the Family Court

wherein the Family Court has observed that during the

course of enquiry of minor child by the Court, the child

has expressed her wish to be in the custody of the

respondent and has declined not to join the custody of

father. Further, the learned counsel would submit that

the minor daughter is not interested to go out with the

petitioner-father. The petitioner may be directed to visit

the child at the premises of the respondent-wife. Thus,

she prays for dismissal of the writ petition.

6. Having heard the learned counsel for the

parties and on perusal of the writ petition papers, I am

of the view that the petitioner has visitation rights as

granted by the Family Court. But the petitioner could

visit the child at the Mediation Centre on every

Saturday except second Saturday between 02.00 p.m.,

to 05.00 p.m.

7. The petitioner has a right of custody as well

as visitation. But the paramount consideration would be

welfare and interest of the child and not the rights of

the parents. The Court under Section 26 of the Act can

pass such interim order and make a provision with

respect to the custody, maintenance and education of

minor child. In the instant case, the child is aged 17

years and within another one year, the child would

attain majority. On attaining the majority, it is for the

child to take a decision either to go with the father or

the mother. The Family Court under the impugned

order rejected the request of the petitioner for

modification of the order taking note of the COVID-19

pandemic situation and also study aspect of the child.

Now that world has, out of pandemic situation and has

come to normalcy. Visiting the father on Saturday

between 02.00 p.m., and 05.00 p.m., would not disturb

the study of the child. Hence, in the facts and

circumstances of the present case, I deem it appropriate

to modify the impugned order of the Family Court and

to dispose of the writ petition with the following

directions:

[i] The petitioner and his family members are

permitted to visit the minor child by name

Arushi on every Saturday except second

Saturday between 02.00 p.m., to 05.00 p.m.,

at Mediation Centre, Bengaluru.

[ii] The respondent shall make available the

minor child Arushi at Mediation Centre,

Bengaluru at Every Saturday, except second

Saturday between 02.00 p.m., to 05.00 p.m.,

to visit the petitioner-father.

[iii] The petitioner and his family members shall

interact with the minor child in a cordial

manner without hurting the sentiments of

the minor child and without disturbing the

atmosphere at the place of visit.