Karnataka High Court
Aaryavardhan Harsha vs Sunitha. S on 6 November, 2024
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NC: 2024:KHC:44581-DB
WPHC No. 95 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
WRIT PETITION HABEAS CORPUS NO. 95 OF 2024
BETWEEN:
1. AARYAVARDHAN HARSHA
AGED ABOUT 6 YEARS
S/O HARSHA S.B.
NATURAL GUARDIAN
HARSHA S.B.
S/O BHASKARACAHAR
R/O SIRI BRUNDAVANA RESIDENCY
FLAT 202, 2ND FLOOR, 9TH MAIN
SRINIDHI LAYOUT
JP NAGAR 8TH PHASE
BENGALURU-560 062
(PRESENTLY IS CUSTODY OF RESPONDENTS)
Digitally signed
2. HARSHA S.B.
by AGED ABOUT 43 YEARS
MADHUSHREE
H S/O BHASKARACAHAR
Location: High R/O. SIRI BRUNDAVANA RESIDENCY
Court of
Karnataka FLAT 202, 2ND FLOOR, 9TH MAIN
SRINIDHI LAYOUT
JP NAGAR 8TH PHASE
BENGALURU-560 062
MB No.9845943095
[email protected]
...PETITIONERS
(BY SRI. KIRAN S. JAVALI, SENIOR COUNSEL FOR
SRI. VARDHAMAN V GUNJAL, ADVOCATE)
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NC: 2024:KHC:44581-DB
WPHC No. 95 of 2024
AND:
1. SUNITHA S.
AGED ABOUT 40 YEARS
W/O HARSHA S.B.
R/AT. No.159, SAI NILAYA
4TH MAIN, BCC LAYOUT
DEEPANJALI LAYOUT
BENGALURU-560 040
MB No.9611761649
EMAIL: [email protected]
2. SHANMUKARACHAR
AGED ABOUT 70 YEARS
FATHERS NAME NOT KNOWN
FORMER ASSISTANT INSPECTOR OF POLICE
R/AT. No.159, SAI NILAYA
4TH MAIN, BCC LAYOUT
DEEPANJALI LAYOUT
BENGALURU-560 040
MB No.9611761649
3. THE HOME DEPARTMENT
GOVT. OF KARNATAKA
REPT BY ITS SECRETARY
VIDHANA SOUDHA
DR. AMBEDKAR VEEDHI
BENGALURU-560 001
4. THE STATION HOUSE OFFICER
KONANKUNTE POLCE STATION
144, ANJANAPURA MAIN ROAD
ANJANADRI LAYOUT, KONANAKUNTE
BENGALURU, KARNATAKA-560 062
...RESPONDENTS
(BY SRI. B.A. BELLIAPPA, SPP A/W.
SRI. M.V. ANOOP KUMAR, HCGP FOR R3 & R4)
THIS WP(HC) IS FILED UNDER ARTICLES 226 AND 227
OF CONSTITUTION OF INDIA, BY THE PETITIONER, WHEREIN
PRAYS THAT THE HON'BLE COURT MAY BE PLEASED TO
(a) ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF
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NC: 2024:KHC:44581-DB
WPHC No. 95 of 2024
HABEAS CORPUS DIRECTING THE RESPONDENTS TO PRODUCE
THE DETENUE 1ST PETITIONER BEFORE THIS HON'BLE COURT
WHO IS ILLEGALLY DETAINED BY THE RESPONDENT No.1 AND
RESPONDENT No.2 WITHOUT ANY REASON SINCE 24TH
AUGUST 2024 AND FREE TO HIM FROM ILLEGAL CUSTODY AND
HAND OVER CUSTODY OF THE 1ST PETITIONER TO THE 2ND
PETITIONER AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
We have heard Shri.Kiran S. Javali, learned Senior
Counsel as instructed by Shri.Vardhaman V. Gunjal,
learned counsel appearing for the petitioners, who submits
that the petitioners are driven to approach this Court filing
this writ petition for Habeas Corpus due to the fact that
though the petitioner No.2, who is father of minor child
approached the Family Court with a Guardian & Wards
application, the same has not been considered
expeditiously. It is submitted that the application is filed
as G & W Case No.361/2024 before the Family Court,
Bengaluru as early as on 24.08.2024 and though
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application for interim custody has also been moved in the
said application on 24.09.2024, no orders have been
passed on the same.
2. Learned Senior Counsel relies on the judgment of
the Hon'ble Apex Court in the case of Tejaswini Goud
and others vs. Shekhar Jagdish Prasad Tewari and
others reported in (2019) 7 SCC 42 to contend that
Habeas Corpus application would be maintainable in a case
where the ordinary remedy of approaching the Family
Court is either not available or is ineffective. In the
instant case, it is contended that the ordinary remedy
before the Family Court has been rendered ineffective by
the non consideration of the application filed by the
petitioner No.2.
3. Having considered the contentions advanced, we
notice that the facts in this case clearly show that there is
a matrimonial dispute pending between the petitioner No.2
and respondent No.1, who is mother of the child. The
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child is admittedly in the custody of the mother, who is
also a natural guardian as the parties are Hindus.
4. In the above view of the matter, we are of the
opinion that the issue with regard to custody of the child
has to be considered by the Family Court in the first
instance. In view of the fact that the petitioner No.2 has
already approached the Family Court with an application
for custody of the child and has sought interim custody by
filing appropriate application, we are of the opinion that it
is for the Family Court to take appropriate decision on the
same at the earliest.
5. Learned counsel appearing for the petitioners submits
that the application for interim custody now stands posted to
29.11.2024. We therefore, make it clear that in case,
petitioner No.2 moves an application for visitation rights or for
advancement of the application for interim custody, in the
meanwhile, the Family Court shall take up the said application,
consider and pass appropriate orders on the same without
undue delay after hearing both sides and after considering
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all relevant matters including the best interest of the
minor within two weeks from the date of filing such
application. The writ petition is accordingly disposed of.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
MH/-
