Karnataka High Court
Shabaz Khan vs Naseema Banu on 22 October, 2024
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WP No. 25731 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO. 25731 OF 2024 (GM-FC)
BETWEEN:
SHABAZ KHAN
S/O FAIROZE KHAN
AGED ABOUT 38 YEARS
R/AT 2ND CROSS
ADARSHA NAGAR
HASSAN 573201
...PETITIONER
(BY SRI. MANJUNATH B R., ADVOCATE)
AND:
1. NASEEMA BANU
W/O MUNEER HUSSAIN
Digitally AGED ABOUT 61 YEARS
signed by R
DEEPA 2. A.M. MUNEER HUSSAIN
Location: S/O LATE ZAHEER AHMED
HIGH COURT
OF AGED ABOUT 66 YEARS
KARNATAKA COFFEE PLANTER
BOTH ARE R/AT
VATEHALLI VILLAGE
AREHALLI HOBLI
SAKALESHPURA TALUK
HASSAN DISTRICT - 573 101
3. ZAREEN RAJ
W/O FAIROZE KHAN
AGED 63 YEARS
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WP No. 25731 of 2024
R/AT 2ND CROSS
ADARSHA NAGAR
HASSAN - 573 201
4. FAUZIA KHANUM
W/O APPA ALI
AGED ABOUT 39 YEARS
R/AT No.779, 17TH 'B' MAIN ROAD
5TH BLOCK, RAJAJINAGAR
BANGALORE - 560 010
5. NAZIA KHANUM
W/O FEROZE KHAN
AGED 37 YEARS
R/AT No.1109, TUDA LAYOUT
4TH CROSS, RAJIV GANDHI NAGAR
TUMAKURU CITY - 572 102.
...RESPONDENTS
(BY SRI. GIRISH KUMAR B M., ADVOCATE FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS AND ISSUE A WRIT OF CERTIORARI OR ANY
OTHER WRIT / ORDER / DIRECTION, MODIFYING THE ORDER
DTD. 27.04.2023 PASSED ON APPLICATION FILED BY THE
PETITIONER U/S 12 OF THE GUARDIANS AND WARDS ACT i.e.
IA NO. 7 IN G AND WC NO. 13/2023 PASSED BY THE
PRINCIPAL JUDGE FAMILY COURT AT HASSAN (ANNX-A) AND
ALLOW THE SAID APPLICATION IN ITS ENTIRETY.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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WP No. 25731 of 2024
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL ORDER
This writ petition is filed challenging the order on
I.A.Nos.7 and 8 dated 27.04.2024 passed in G & W.C
No.13/2023 by the principal Judge, Family Court, Hassan.
2. Brief facts leading rise to the filing of this writ
petition are as follows:
The petitioner got married to Smt. Numara Seeneen
at Hassan. The petitioner took his wife to Saudi Arabia,
where he was working, and the first female child was born,
named Amairah Fathima, and the second female child,
named Haramine Fathima. The wife of the petitioner and
children, came back to India for a short visit. The wife of
the petitioner committed suicide in the house of the
brother-in-law of the petitioner in Bengaluru. A criminal
case was registered against the petitioner in Crime
No.11/2022 for the offence punishable under Section 304
(B) read with 34 of IPC. The petitioner filed a petition
under Section 12 of the Guardian and Wards Act for the
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custody of the minor children. In the said proceedings,
the respondents filed a statement of objections to the
main petition. The petitioner and his family members
were acquitted in the said criminal case vide judgment and
order of acquittal dated 06.02.2024. The petitioner filed
an application under Section 12 of the Guardian and
Wards Act seeking interim custody of the female children
during weekends and interim custody on all school
vacations of the children.
3. The respondents filed objections to I.A.No.7.
The Family Court, after hearing the learned counsel for the
parties, allowed the application filed by the petitioner and
permitted the petitioner to meet the children every
Saturday for one hour at the same place as ordered in
I.A.No.1/2023, in the presence of either of the
respondents, till the completion of the summer vacation
and also allowed I.A.No.8 directing the petitioner No.1 to
pay Rs.5,000/- towards the protection of the 2 minor
children, from the date of application till the disposal. The
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petitioner filed this writ petition to modify the order dated
27.04.2023 passed on I.A.No.7 in G & W.C No.13/2023.
4. Heard the learned counsel for the petitioner and
also learned counsel for the respondents.
5. Learned counsel for the petitioner submits that
the Family Court committed an error in granting one hour
time to the father to meet his children. Said one hour
time is not sufficient for him to meet his children. He also
submits that the respondents have not handed over the
interim custody of minor children to the petitioner as
directed by the court in I.A.No.1/2023. It is submitted
that the minor female children of the petitioner are losing
their valuable tender age in the absence of love and
affection from the petitioner, his parents and relatives.
Hence, on these grounds, prays to modify the order
passed by the family Court.
6. Per contra, learned counsel for the respondents
submits that the petitioner committed murder of his wife
and he was involved in a criminal case. Merely the
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petitioner acquitted in the criminal case cannot be a
ground to grant the custody of the children. It is
contended that the petition filed by the petitioner is not
maintainable. It is contended that female children are
comfortable in the custody of the respondents. The
respondents are taking care of the minor children. Hence,
on these grounds, the family Court was justified in passing
the impugned order. Hence, on these grounds, prays to
dismiss the writ petition.
7. Perused the records and considered the
submissions of the learned counsel of the parties.
8. It is not in dispute that the petitioner filed
I.A.No.1/2023 seeking the visitation rights and interim
custody in respect of 2 minor children once in a week from
Saturday afternoon till Sunday night. The said application
was allowed by the family Court vide order dated
13.10.2023. The petitioner was entitle for visitation rights
once in a month for one hour preferably on any Saturday
afternoon before ADR centre, Hassan, in the presence of
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either of the respondents. It is also not in dispute that a
criminal case was registered against the petitioner and his
family members, and they are acquitted in
S.C.No.1295/2022. After the disposal of the criminal case,
petitioner No.1 filed I.A.No.7 seeking for interim custody
once in a week from Saturday afternoon till Sunday night
and for the full period of vacation during summer, Dasara
and Christmas vacation, in view of the changed
circumstances. The said application was opposed by the
respondents by filing objections contending that 2 minor
children are in the safe custody of the respondents and
they are taking care of the minor children. Father cannot
be a guest in the life of 2 minor children. If visitation
rights are only granted for limited hours, it may not be
sufficient for the children to have a comfortable time with
the father. With the wider gap, bonds were broken
quicker and the children are left confused and end up
believing this. Such acts of grand parents in separating
the children from the father should be nipped in the bud;
otherwise separated. Father became a guest in the life of
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the minor children, mere meeting and spending time for
the parents in a couple of hours in the court premises etc.
Under the supervision of other relatives will not survive
any purpose of visitation as the children would be under
the pressure and will not be comfortable. The
grandparents i.e., respondents and minor children and
petitioner were present and I interacted with them, when
a specific question was put to the minor children, whether
they are willing to go with the father? It was found that
they are under pressure of the respondents. Petitioner
No.1 being a father is entitle for interim custody in regard
to the visitation rights. Further, the Family Court placing
reliance on the judgment of this court in the case of Smt.
Jyothi Priya Vs. Paul Goodwin reported in ILR 2021 KAR
4894 was of the opinion that petitioner No.1 was
examined and before the completion of enquiry,
modification of the earlier order is not necessary. The
Family Court has passed the order on I.A.No.1/2023 on
13.10.2023, wherein the petitioner and his family
members were acquitted in S.C.No.1295/2022 i.e.,
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subsequent to the passing of the order on I.A.No.1/2023
as there is changed in the circumstances. In view of the
acquittal of the petitioners in S.C.No.1295/2022, the
Family Court could have modified the order. On the
contrary allowed I.A.No.7 in part and permitted petitioner
No.1 to meet the children on every Saturday for one hour
at the same place as ordered on I.A.No.1/2023 in the
presence of either of the respondents till the completion of
the summer vacation. The time granted by the Family
Court is very less, as petitioner No.1 being a father is
entitle to meet his minor children.
9. Accordingly, I proceed to pass the following:
ORDER
The writ petition is allowed in part.
Impugned order on I.A.No.7, passed by
the Family Court, is modified.
Petitioner No.1 is permitted to meet the
children every Saturday and Sunday, from
10.00 am to 5.00 p.m., at the same place as
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ordered in I.A.No.1/2023, in the presence of
either of the respondents, till the disposal of the
petition.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SKS
