Karnataka High Court

Mahesh D. Yatnalli vs The State Of Karnataka on 23 May, 2023

Bench: Alok Aradhe, Anant Ramanath Hegde

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                                                   WPHC No. 34 of 2023




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 23rd DAY OF MAY, 2023

                                      PRESENT
                      THE HON'BLE MR. JUSTICE ALOK ARADHE
                                        AND
                  THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
                              W.P.H.C. NO.34 OF 2023


             BETWEEN:

                  MAHESH D. YATNALLI,
                  S/O DEVENDRAPPA,
                  AGED ABOUT 49 YEARS,
                  R/AT #202, "KAUTIK" SHIVA RESIDENCY,
                  24TH MAIN END,
Digitally
signed by         VINAYAKA NAGAR ROAD,
RUPA V            NEAR BIG BAZAAR,
Location:
High Court        J.P NAGAR 5TH PHASE,
of                PUTTENHALLI,
Karnataka
                  BENGALURU-560078.

                                                          ...PETITIONER
             (BY SRI. K.B MONESH KUMAR ADV., FOR
              SRI. VIJETHA. R. NAIK ADV., FOR PETITIONER (P/H)


             AND:

             1.   THE STATE OF KARNATAKA
                  THROUGH HOME DEPARTMENT
                  GOVERNMENT OF KARNATAKA
                  2ND FLOOR, VIDHANA SOUDHA
                  BENGALURU-560 001.
                  REP. BY ITS ADDL. CHIEF SECRETARY

             2.   THE COMMISSIONER OF POLICE
                  BENGALURU CITY
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                                      WPHC No. 34 of 2023




     KARNATAKA STATE POLICE
     BENGALURU-560 001.

3.   THE INSPECTOR OF POLICE
     MICO LAYOUT POLICE
     KARNATAKA STATE POLICE
     BENGALURU-560 001.

4.   R. SUJATHA @ SARASWATHI,
     D/O SRI RAMACHANDRAN,
     AGED ABOUT 47 YEARS,
     R/AT FLAT NO. GO1,
     MANAR MERLYN APARTMENT,
     SUNSHINE COLONY 14TH MAIN,
     12TH 'A' CROSS, BTM 2ND STAGE,
     BENGALURU-560076
                                          ...RESPONDENTS
 (BY SRI. R.A.DEVANAND ADV., FOR
     SRI. SHASHIDHAR BELAGUMBA ADV., FOR R4(P/H)
     SRI. THEJESH. P HCGP FOR R1 TO R3(P/H)


      THIS WPHC IS FILED UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT, ORDER

OR DIRECTION OR ANY OTHER WRIT IN THE NATURE OF

HABEAS CORPUS DIRECTING THE RESPONDENT NOS.1 TO 3

TO SEARCH AND PRODUCE THE SON OF THE PETITIONER BY

NAME KAUTHIK IYER YATNALLI BEFORE THIS HON'BLE COURT

AND HAND IT OVER TO THE CUSTODY OF THE PETITIONER, IN

THE INTEREST OF JUSTICE. AND ETC.


      THIS PETITION COMING ON FOR ORDERS, THIS DAY,

ALOK ARADHE J., MADE THE FOLLOWING:
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                                        WPHC No. 34 of 2023




                           ORDER

Mr.K.B.Monesh Kumar, learned counsel for the

petitioner.

Mr.R.A.Devanand, learned counsel along with

Mr.Shashidhar Belagumba, learned counsel for the

respondent No.4.

Master Kautik Iyer Yatnalli along with respondent

No.4 is present before this Court.

This petition has been filed seeking a writ of

Habeas Corpus to produce the minor son of the parties

namely Kautik Iyer Yatnalli (hereinafter referred to as

'the son') before this Court.

2. Facts giving rise to filing of this petition briefly

stated are that petitioner and respondent No.4 were

married on 28.02.2011. From the wedlock, son was

born to them on 10.12.2011. On account of

matrimonial disputes, the parties did not stay together

WPHC No. 34 of 2023

beyond 2014. It appears that respondent No.4 had

initiated a proceeding under Section 125 of the Criminal

Procedure Code, 1973 seeking maintenance for herself

and the son which was decided by an order dated

22.02.2022. Against the aforesaid order, a revision

petition namely RPFC No.104/2022, was preferred

before this Court. In the said proceeding, the petitioner

as well as respondent No.4 arrived at an amicable

settlement. Admittedly, under the aforesaid

compromise, respondent No.4 was appointed as

guardian of son whereas petitioner namely the father of

son was granted visitation rights during weekends as

well as custody of child during Summer and Winter

Vacations.

3. It is also not in dispute, that, in compliance of

the compromise arrived at between the parties in the

month of December 2022, the custody of son was

WPHC No. 34 of 2023

handed over to the petitioner and the son spent

approximately 12 days with the petitioner.

4. However, it is the case of the petitioner that he

went during one of the weekends in the month of

January 2023 to visit the son but was denied access to

the son and despite commencement of the Summer

Vacation of the son w.e.f. 25.03.2023, the custody of the

son was not handed over to him as per the terms of the

compromise arrived at between the petitioner and

respondent No.4. Thereafter, petitioner has sent e-mails

to the respondent No.4. However, no response was

received to the e-mails and the petitioner was denied

any sort of access to the son. Thereupon, the petitioner

filed this petition seeking a writ of Habeas Corpus on

19.04.2023. In the aforesaid factual background, this

petition arises for our consideration.

WPHC No. 34 of 2023

5. Learned counsel for the petitioner submitted

that petitioner is employed as a Senior Manager in

Hindustan Aeronautics Limited and is entitled to access

to the son in view of compromise arrived at between the

parties. Our attention has also been invited to the

photographs produced before us and it is contended

that those photographs have been taken in the month of

March 2017 where son seems to be comfortable with the

petitioner. It is also submitted that the petitioner has

already applied for grant of leave and in case an

opportunity is granted to the petitioner to spend

sometime with the son for such period as this Court

may deem fit, the petitioner shall obtain leave and shall

be with his son all the time. It is also stated that the

petitioner will ensure that his mother Smt.Anasuya and

his sister Jyothi will also remain present during the

period in which the son stays with the petitioner. It is

also submitted that a writ of Habeas Corpus, in the fact

situation of the case, is maintainable. In support of

WPHC No. 34 of 2023

aforesaid submission, reliance has been placed on the

decision of the Hon'ble Supreme Court in 'RAJESWARI

CHANDRASEKAR GANESH Vs. STATE OF TAMIL

NADU & OTHERS', 2022 SCC ONLINE SC 885.

6. On the other hand, learned counsel for the

respondent No.4 submitted that the petitioner has not

placed on record the leave grant certificate and no leave

has been granted to him. It is further submitted that

the petitioner is alone and he would not be able to pay

attention to the son who is a patient of epilepsy. It is

further submitted that this Court may interview the

son. It is also contended that the instant case is not a

case of illegal detention as the son is in the custody of

the mother and in case the terms and conditions of the

compromise arrived at between the parties have been

breached, the petitioner is at liberty to initiate the

proceedings for contempt of this Court. It is pointed out

that the petitioner has already resorted to the remedy of

WPHC No. 34 of 2023

filing a petition for non-compliance of the compromise

recorded by this Court. It is also urged that only in case

of an infant, a writ of Habeas Corpus is maintainable in

case the child is in illegal custody. In support of

aforesaid submission, reliance has been placed on the

decision of Hon'ble Supreme Court in 'KANU SANYAL

Vs. DISTRICT MAGISTRATE, DARJEELING AND

OTHERS' (1973) 2 SCC 674 AND 'GOHAR BEGUM Vs.

SUGGI ALIAS NAZMA BEGUM AND ORS.' AIR 1960 SC

93.

7. We have considered the submissions made on

both sides and have perused the record. The issue with

regard to maintainability of a writ of Habeas Corpus at

the instance of one of the parent is no longer res integra

and has been answered by the Hon'ble Supreme Court

in 'YASHITA SAHU Vs. STATE OF RAJASTHAN' (2020)

3 SCC 67. In paragraph 10 of the aforesaid judgment,

it has been held as under:

WPHC No. 34 of 2023

"10. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw vs. Arvand M. Dinshaw & Ors. (1987) 1 SCC 42, Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. (2017) 8 SCC 454 and Lahari Sakhamuri vs. Sobhan Kodali (2019) 7 SCC 311 among others. In all these cases the writ petitions were entertained. Therefore, we reject the contention of the appellant wife that the writ petition before the High Court of Rajasthan was not maintainable."

8. In view of aforesaid enunciation of law, it is

axiomatic that in case the child is in custody of one of

the parent, writ of Habeas Corpus is maintainable. In

the instant case, we are conscious of the fact that the

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WPHC No. 34 of 2023

son is in the custody of the mother. However, the fact

remains that the petitioner and the respondent No.4

had entered into a compromise and under the

compromise, the petitioner is entitled to visit the son

during weekends and is entitled to his custody during

Summer as well as Winter Vacations. In the instant

case, admittedly the petitioner has been deprived access

to the son during the Summer Vacation. Therefore, in

the fact situation of the case, the writ of Habeas Corpus

is held to be maintainable.

9. In case of KANU SANYA supra, a Constitution

Bench of the Hon'ble Supreme Court has traced the

development of a writ of Habeas Corpus. It is pertinent

to note that in RAJESWARI CHANDRASEKAR

GANESH, supra, the Hon'ble Supreme Court took note

of the law laid down by it in KANU SANYA'S case and

has held that writ of Habeas Corpus is maintainable in

case the child is in custody of one of the parents.

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WPHC No. 34 of 2023

Similarly in GOHAR BEGUM, supra, the Hon'ble

Supreme Court dealt with the claim of a Muslim mother

who stayed off her minor daughter. The minor daughter

was not in custody of either of the parents. Therefore,

the ratio of the decision of GOHAR BEGUM'S case,

supra has no application to the facts of the case.

10. At this stage, we also take note of the report

submitted by Dr.S.R.Lakshmipathy, M.D.(Pediatrics),

stating that on account of medication given to the son,

he is alert and interactive and does not suffer from any

deficits presently and is reasonably good in

communication.

11. We have also interacted with the son namely

Master Kautik Iyer Yatnalli in the Chambers. Upon

interaction, the son disclosed that he likes his

grandmother. Therefore, during his stay with the

petitioner, it is all the more necessary that a congenial

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WPHC No. 34 of 2023

atmosphere remains in the house of the petitioner

where the son can feel comfortable.

12. It is well settled in law that the concept of

guardianship of a ward is essentially different from

custody of the ward. The Court has to ensure that

sufficient visitation rights to a parent who is not given

child's custody should be granted so that the child may

not loose social, physical and psychological contact with

the parent. The parent who is denied the custody of the

child should have access to the child specially when

both parents live in same city. The parents 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 the parents if not joint then atleast separate. In

the instant case, parties have arrived at a settlement

with regard to guardianship and custody of the son.

We, therefore, see no reason as to why respondent No.4

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WPHC No. 34 of 2023

should be permitted to flout the terms and conditions of

the compromise arrived at between the parties, that too

without any justification.

13. It is made clear that this Court has not

expressed any opinion with regard to violation of the

terms and conditions arrived at between the parties

which is a issue to be agitated and adjudicated in a

proceeding initiated by the petitioner seeking contempt

of the orders passed by this Court.

14. In the facts and circumstances of the case and

in view of amicable settlement arrived at between the

parties, we issue the following directions:

(1) The respondent No.4 shall handover

the custody of the son to the petitioner today

by 5 p.m. and the petitioner shall be entitled

to the custody of the son till 04.06.2023.

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WPHC No. 34 of 2023

(2) The petitioner shall be on leave and

shall spend the whole time with the son from

the time of handing over of the custody till

04.06.2023. In addition, the petitioner shall

ensure that his mother and his sister also

stay with him during the period for which the

son stays with the petitioner.

(3) The petitioner shall take care of his

son and shall attend to his medical needs.

Respondent No.4 is directed to provide the

details of the doctor under whose treatment

the son is, to the petitioner and in case of any

medical assistance to the son, the petitioner

shall forthwith take his son to the concerned

medical specialist.

(4) Respondent No.4 shall be entitled to

make a video call daily to the son between the

period from 6 p.m. to 7 p.m.

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