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2024 Supreme(Kar) 283
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
LALITHA KANNEGANTI, J.
Sri. Sayan Mukherjee, S/o. Asish Kuamr Mukhopadhyay - Petitioner
Versus
Smt. Nabamita Mukherjee, W/o. Sri Sayan Mukherjee – Respondent
Writ Petition No. 13848 Of 2024 (GM-FC)
Decided On : 29-07-2024
For the Petitioner: Sri. K.G. Kamath, Adv.
For the Respondent:Sri. Adit Chandangoudar, Advocate
IMPORTANT POINT
The court established that child welfare is the primary consideration in custody disputes, advocating for amicable resolutions over contentious litigation.
Headnote:
Custody - Child Custody - CPC Section List - The court discussed the provisions under Order 39 Rule 1 and 2 and Section 151 of the CPC, emphasizing the importance of child welfare and the need for amicable settlements in custody disputes.
Fact of the Case:
The father filed a writ petition challenging the trial court's orders regarding custody and visitation rights of their minor child, after the mother took the child out of jurisdiction despite prior agreements.
Finding of the Court:
The court noted the trial court's dismissal of the father's injunction application and granted visitation rights, ultimately facilitating a settlement between the parents for the child's welfare.
Issues: Whether the trial court's order to restrain the mother from taking the child out of jurisdiction was maintainable and the appropriateness of the visitation rights granted to the father.
Ratio Decidendi: The court emphasized that the welfare of the child is paramount and that amicable settlements are preferable in custody disputes, leading to the acceptance of a joint memo between the parties.
Result: The writ petition is disposed of in light of the compromise entered between the parties.
ORDER :
(Lalitha Kanneganti, J.) :
The present writ petition is filed aggrieved by the orders passed in I.A.No.2 & 3 in G&WC No.21/2023 dated 22.03.2024 by the IV Addl. Senior Civil Judge, Bengaluru Rural District.
2. The said G&WC is filed by the father for the custody of the child, in that he has filed I.A.No.2 and 3. I.A.No.2 is filed restraining the mother from taking the minor child out of Bangalore. I.A.No.3 is filed seeking visitation rights. Initially the wife had filed a memo stating that she has no objection and will not take the child out of the jurisdiction of the court till the injunction petition is decided i.e., I.A.No.2. Thereafter by order impugned the court had dismissed the I.A filed by the husband seeking injunction and the court has observed that there is no provision under the act to pass such an order. Then as far as I.A.No.3 is concerned, father was granted visitation on every Sunday from 8.00 am. to 10.00 p.m. depending upon the convenience, he is entitled to the interim custody on public holiday.
3. When the matter came up on 18.07.2024, this court had passed an order which reads as follows:
The petitioner is before this Court aggrieved by the order passed by the trial Court in I.A.No.2, whereby the trial Court had rejected the application filed by the father seeking direction to restrain the mother not to move the child to any city. In I.A.No.3, the petitioner had claimed the relief of handover the child to the custody of the father and the trial Court had partly allowed the same. When it comes to the order restraining the mother from taking the child from the jurisdiction of the Court, the trial Court had observed that the application under Order 39 Rule 1 and 2 and Section 151 of CPC is not maintainable.
Learned counsel for the petitioner submits that earlier, when he has moved such an application before the trial Court, the respondent had filed memo that the minor will not be removed from the city as sought by the petitioner in I.A.No.2. In spite of all these, she has taken the child to Delhi. The trial Court had granted visitation rights to the father on every Sunday from 8:00 A.M to 10:00 P.M and he is also entitled to the interim custody on public holiday to the school if any of the said time.
Considering all these, the mother shall be present along with the child on 25.07.2024 before this Court.
and again on 26.07.2024 another orders was passed.
4. Today the mother along with the child is present before the court. When the matter came up in the morning this court has suggested both the advocates to try for a settlement and also this court had asked Mr. Gautham Raghunath, Advocate to mediate in this matter. With the co-operation and active intervention of the counsels, the parties have entered into a settlement and a ‘Joint Memo’ is placed before the court. Both the husband, wife and the advocates are present before the court. The husband and wife submits that in the interest of the minor child, they have arrived at this settlement. The Joint Memo filed by both the parties, is taken on record. The ‘Joint Memo’ filed by the parties reads as follows:
The Petitioner and the respondent respectfully submit as follows:
1. The Petitioner father had filed a G & WC No.21/2023 before the Senior Civil Judge. Bengaluru Rural. Challenging orders on I.A.No.2 and 3 the Petitioner has filed the above writ Petition. During the pendency of the above Writ Petition the parties have arrived at an amicable arrangement between them and the same is placed before this Hon’ble Court for kind consideration.
2. The respondent agrees to give custody of the minor child Master Ishaan with the petitioner for continuing his studies at Bengaluru. The Petitioner will visit Delhi on 04.08.2024 and the Respondent will hand over the custody of the minor child to the custody of the father to be taken to Bengaluru for his studies and the Respondent has no objection on this matter.
3. The petitioner will facilitate for the respondent to
