Karnataka High Court
Malike Saba vs Sameer Hamsaramla on 30 March, 2023
Bench: M.Nagaprasanna
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WP No. 5403 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 5403 OF 2023 (GM-FC)
BETWEEN:
MALIKE SABA
W/O SAMEER HAMSA RAMLA
AGED ABOUT 40 YEARS
R/A APARTMENT NO.3067
PRESTIGE SHANTINIKETAN
ITPL ROAD, WHITEFIELD
BANGALORE-560048
REPRESENTED BY GPA HOLDER
EHTASHAMUL HAQUE
...PETITIONER
(BY SRI. SUBRAHMANYA P D DATTATRAY HEGDE.,ADVOCATE)
AND:
1. SAMER HAMSARAMLA
S/O LATE ALIYARU KUNJU HAMSA
Digitally signed by
PADMAVATHI B K AGED ABOUT 38 YEARS
Location: HIGH R/A C/O RAMLA BEEVI ABDUL
COURT OF KHARIM, HASAM TC.7/966(2)
KARNATAKA ULSOOR BHASI NAGAR
KOCHU ULLOOR MEDICAL COLLEGE P.O
THIRUVANATHAPURAM
KERALA-695011
R/A 1161, COLFAX AVENUE
DES PLAINES, USA-60016
...RESPONDENT
(BY SMT. DEEPA.J., ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 227 OF
CONSTITUTION OF INDIA PRAYING TO DIRECTION IN THE
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WP No. 5403 of 2023
NATURE OF MANDAMUS UPON THE COURT BELOW I.E. THE
HONBLE VIII ADDL. DIST. AND SESSIONS JUDGE BENGALURU
RURAL TO EXPEDITE AND DECIDE THE IA. NO. 3 AMENDMENT
APPLICATION (ANNX-D) OF PETITIONER IN G & WC CASE NO.
24/2021 FIRST WITHIN A PERIOD OF ONE TO TWO WEEKS OR
AS WITHIN THE PERIOD AS STIPULATED BY THIS HONBLE
COURT, OTHERWISE THE PETITIONER WILL SUFFER
IRREPARABLE LOSS AND INJURY AS PETITIONER WILL NOT
GET TIME TO FILE AN APPEAL IF AMENDMENT APPLICATION IS
DISALLOWED AT THE LAST MOMENT.
THIS PETITION IS COMING ON FOR PRELIMINAY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court seeking for the
following reliefs:
i. Issue a writ, order or direction in the nature of mandamus
upon the Court below i.e. the Hon'ble VIII Additional District
& Sessions Judge, Bengaluru Rural to expedite and decide
and I.A.No.3 amendment application (Annexure -D) of
petitioner in G & WC case No.24/2021 first within a period
of one to two weeks or as within the period as stipulated by
this Hon'ble Court. Otherwise the petitioner will suffer
irreparable loss and injury as petitioner will not get time to
file an appeal if Amendment application is disallowed at the
last moment.
ii. Issue a writ, order or direction in the nature of
mandamus upon the Court below i.e. the Hon'ble VIII
Additional District & Sessions Judge, Bengaluru Rural to
reject the photocopies of Affidavits of Respondent
(Annexure-H, Annexure -J & Annexure -K) and decide any
WP No. 5403 of 2023
other applications after deciding the Amendment
application.
iii. Grant stay on further proceedings in G&WC 24/2021 till
the matter are deciding by this Hon'ble Court.
iv. Such other relief's as this Hon'ble Court deems fit under
the facts and circumstances of the case.
2. The petitioner is the wife and the respondent her
husband. The two get married on 25.09.2016. Later, the wife
joins the husband at the United States. From the wedlock, a
daughter is born on 10.07.2018 in the United States. On
several allegations or dispute between the husband and wife
the petitioner along with her daughter who was then 8 months
old, returns back to India to her parents house and later
returns to Bangalore. On 03.12.2020, the petitioner and the
daughter appear to have rejoined the husband at the United
States, which the petitioner contends was on the promise of
husband reforming himself. After about six months again on
certain allegations of the husband beating the daughter and the
wife, the petitioner and the minor daughter were granted ex
parte emergency order of protection by the competent Court at
the United States, on the strength of which later the petitioner
and her daughter return back to Bangalore.
WP No. 5403 of 2023
3. The husband later, secures an order from the Court at
the United States to retrieve the child from India on
28.06.2021, after which the wife files a G. and W.C. 24 of 2021
seeking custody of the minor daughter before the concerned
Court. The respondent comes back to India and files a habeas
corpus petiton before this Court seeking repatriation of the
minor daughter to the United States on the strength of the
order passed by the Court at United States and later files an
application under Order 7 Rule 11(d) of the CPC for rejection of
the plaint in G. and W.C.24 of 2021 on the issue of jurisdiction
contending that the wife was living in the United States. The
Court dismisses the aforesaid proceeding, against which, the
wife comes up before this Court in M.F.A.2094 of 2021. The
habeas corpus petition was dismissed on 12.04.2022. The wife
challenges the dismissal of the petition before the Apex Court.
During the pendency of the proceedings before the Apex Court,
this Court allows M.F.A.2094 of 2021 and restores G. and
W.C.24 of 2021. Noticing this fact the Apex Court rejecting the
SLP directs the concerned Court to dispose the G. & W.C. 24 of
2021 within six months. The order of the Apex Court reads as
follows:
WP No. 5403 of 2023
"We have heard learned counsel for the parties.
This Court is of the opinion that the impugned order does
not call for interference. At the same time, the Court is
also of the opinion that learned VIII Additional District
and Sessions Judge, Bengaluru Rural District which is
seized of the guardian G & WC.No.24/2021, should
complete the proceedings and render judgment in it as
expeditiously as possible and in any case within six
months from today".
After the restoration of the case in terms of the order passed
by this Court in the aforesaid M.F.A., the wife files an
application for amendment of pleadings. Several memos are
filed by the husband and certain orders are passed on the
memos by the concerned Court. The petitioner rushes to this
Court again in the subject petition on the orders passed on the
memos contending that a valid application in the eye of law is
ignored and orders are passed on the memos.
4. In all the jugglery between the husband and the wife,
what is forgotten is the direction of the Apex Court to dispose
the case within 6 months. The husband and the wife cannot
frustrate the order of the Apex Court by filing either memo or
applications unnecessarily. The concerned Court is bound by
what the Apex Court has directed. The order of the Apex Court
is on 15.11.2022 and the time limit of 6 months would come to
WP No. 5403 of 2023
an end on 14.05.2023. The concerned Court cannot go beyond
the time fixed by the Apex Court.
5. Therefore, the parties to the lis shall not frustrate the
order of the Apex Court by seeking unnecessary adjournments
before the concerned Court and shall co-operate with the
conclusion of the proceedings before the Court. In the event
the petitioner or the respondent would not co-operate with the
conclusion of the proceedings as directed by the Apex Court,
the concerned Court is at liberty to pass appropriate orders in
accordance with law.
Accordingly, the petition is disposed of.
Sd/-
JUDGE
AG
