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:

Tejaswini Gaud & others Vs Shekahar Jagadish Prasad.

Km. Sunitha and others Vs Smt. Shyam Kali, AIR 1982 ALL page No.1 Ramesh Chand Joshi & Others Vs State of UP

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O. Ulaganathan Vs. K.R.G. Chandrashekar & others 1993(2) MLJ 201 Velan Vs G. Muthu & others (1992)DMC 167

Kulwant Singh Vs State of Harayana & others

Rajeswari Chandrashekar Ganesh Vs State of Tamil Nadu & others 2022 (SC) 605

S.Rama Iyer Vs. K.V. Nataraja Iyer Equivalent Citations (1948)1 MLJ 125

Ankur tripathi Alias Tinnu Vs. Sri. Radhey Shyam Pandey and other Manjula Malini Seshachalam Vs. Vijay

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:

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 G&WC 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 G&WC 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

Judgment of Apex Court in Crl.A.No.838/2019 dt: 06.05.2019

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child. 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

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

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

G&WC 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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Sunday 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.