Read Order: Vijaya Mahantesh Mulemane vs. State of Karnataka & Others 

Pankaj Bajpai

Bengaluru, March 10, 2022: While observing that the principles of comity of Curts must yield to best interest and welfare of the minor, the Karnataka High Court (Bengaluru Bench) has said that it is in the best interest of the child that she should be allowed to stay with her mother (respondent) in India, in view of undertaking given by the mother that she will stay with her parents, till the issue pertaining to her custody is finally adjudicated. 

A Division Bench of Justice Alok Aradhe and Justice S. Vishwajith Shetty observed that the parent who is denied the custody of the child should have access to the child especially when both the parents live in different countries, as parents are under an obligation to provide for an environment which is reasonably conducive to the development of the child.

The observation came pursuant to a petition seeking a writ of habeas corpus for production of Kum.Anvita (detenue – daughter) aged about 10 years and to permit Vijaya (petitioner) to take the daughter with him to Canada. 

Going by the background of the case, the petitioner is the natural father of the detenue -daughter and the marriage between the petitioner and fourth respondent was solemnized as per Hindu rights and customs and civil marriage was performed at Toronto in Canada. After the birth of their daughter in Canada, the respondent filed a petition seeking divorce in Superior court of Justice at Toronto, Canada, which directed that respondent shall have temporary access to the child. When, on the basis of consent furnished by the petitioner, the respondent and the daughter traveled to India, the respondent made attempts to stop the petitioner from leaving India with the child and lodged a complaint against the petitioner for offences u/s 498A, 341, 504, 506 of IPC as well as u/s 3 and 4 of the Dowry Prohibition Act, 1961.

The petitioner however, returned to Canada for professional commitments and moved the court in Canada apprising the subsequent events which took place in India. The court in Canada directed the respondent to return the custody of the child to the petitioner. Thereafter, the superior court of Canada passed an order granting the sole custody of the child to the petitioner. However, when the petitioner returned to India, the respondent did not permit the petitioner to interact with the child and refused to hand over the custody of the child. Thereupon, the petitioner filed a writ of habeas corpus which was disposed of by holding that the daughter is not in the company of the petitioner for past three years and it would be appropriate that she continues to be with the mother for the present. 

Thereafter, respondent filed a petition under the Guardians and Wards Act, 1890 before Family Court, Bengaluru, which held that it had neither territorial jurisdiction nor any cause of action within its jurisdiction to maintain the petition. Hence, present petition. 

After considering the submissions, the High Court found that that the daughter is residing with respondent in India for nearly three and half years and has developed roots here, which is conducive to her overall growth. 

The mother is a house wife and is in a position to devote time to take care of the daughter and if the custody of the daughter is given to the petitioner, at this point of time it will suddenly and abruptly disturb the child’s daily routine and the education as the academic session in Canada starts in September, added the Court. 

The High Court therefore held that the petitioner will be entitled to communicate with the child through phone / video call / skype at any time, the respondent will provide the school calendar of the child with the list of holidays along with dates of examination to the petitioner and the respondent will have to keep the petitioner informed about the day to day developments of the daughter on weekly basis and the aforesaid communication will be sent to the petitioner on a Sunday every week.

The Court also ordered that the petitioner shall be at liberty to meet the child after intimation to the respondent. During the period of stay of petitioner in India, he shall be at liberty to meet the daughter on 1st and 3rd Sunday of every month and shall be entitled to take custody of the daughter from the respondent at 11.00 a.m. and shall hand over the custody of the daughter to respondent a 5.00 p.m.

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