Full Judgment Text
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
th
Dated this the 10 day of June, 2015
Present
THE HON’BLE MR JUSTICE VINEET SARAN
&
THE HON’BLE MR JUSTICE BUDIHAL R B
Writ Petition (Habeas Corpus) 75 / 2015
Between
Mrs Sandya Goni, 39 yrs
W/o Mr Ashok S Goni
R/a # 02, Ajantha Apartments
TF 302, N N Farms
Sanjaynagar, Bangalore 94 Petitioner
(By Sri Smit N Mandgi, Adv.)
And
1 State of Karnataka – by its Prl. Secretary
Home Department, Vidhana Soudha
Bangalore
2 Commissioner of Police
Infantry Road, Bangalore
3 Circle Inspector of Police
Sanjay Nagar, Bangalore 94
4 Police Sub-Inspector
Sanjaynagar Police Station
Bangalore 94
5 Mr Ashok S Goni, 58 yrs
S/o late Shivraj Goni
R/a # 53, Goni Fairfeild
2
GF 002, N N Farms, 40 Ft. Road
Sanjaynagar, Bangalore 94 Respondents
(By Sri H V Manjunath, AGA for R1-4;
Sri Vishnu Murthy for Smt H V Vasantha
Lakshmi, Adv. For R5)
Writ Petition is filed under Art.226/227 of the Constitution
rd
praying to direct 3 respondent police to produce the daughter of the
th
petitioner Ms Shreya Goni who has been illegally detained by the 5
respondent before this Court.
The Petition coming on for Orders this day, Vineet Saran, J.,
made the following:
ORDER
This is an unfortunate case where a young girl aged about 13
years is torn between her two parents. The admitted facts are that since
the year 2010 after the separation of the two parents, being the
petitioner (mother) and respondent 5 (father), the child Ms Shreya
remained in the custody of her mother. After separation, the petitioner
and respondent 5 reside separately but opposite each other’s houses in
different apartments. It is not disputed that during this period, while the
daughter Ms Shreya stayed with her mother, she used to visit her father.
But, as per the statement of respondent 5 made before this Court, she
never stayed overnight with her father.
3
It was on 8.5.2015 that respondent 5 (father of the girl) sent an
SMS (message on the mobile phone) to the petitioner (mother of the
girl) to the effect that since their daughter had attained puberty and there
was a function to be held for it on 10.5.2015, he would like the daughter
to visit him so that he could give a gift to his daughter. On such plea, on
8.5.2015 the mother permitted the child to go to the father and in such
circumstance, father got the custody of the child which was for giving a
gift at a function to be held on 10.5.2015. The averments in this regard
have been made in paragraph 6 of the petition, which the learned
counsel for respondent 5 has admitted to be correct. Though an
objection has been filed today but no reply has been given to the
averments made in the petition. The contents of paragraph 6 of the
petition have not been denied. Further, along with the objections filed
today, annexure B is a communication dated 8.5.2015 made by
respondent 5 to the Station House Officer, Sanjaynagar Police Station,
Bangalore, informing the police that his daughter Ms Shreya was in his
custody, and that he was taking her out on vacation for about a month
for summer holidays. After taking custody of the child from the mother
on 8.5.2015, which was on the pretext of giving a gift at a function to be
held on 10.5.2015, it is noteworthy that on that very date the respondent
5 (father) made such a communication to the police to the effect that he
4
was taking his daughter out on vacation for a month. This clearly shows
that the custody of the child was taken by the father from the mother on
misrepresentation. It clearly appears that the intention was not to give a
gift to the daughter/child at a function to be held on 10.5.2015 but to
take her out on a vacation for a month, as no such function is said to
th
have taken place on the 10 on which date the father had said that he
was to give a gift to his daughter.
This Court is conscious of the fact that there is nothing wrong in
the father wanting to have custody of the daughter and take her out on
vacation but, the manner in which custody was taken from the mother,
which was deceitfully done by giving a wrong information, is what is
objectionable.
On 5.6.2015, when this case was first taken up by this Court,
notice was issued to respondent 5 and was posted for 18.6.2015. It was
on an earlier complaint lodged by the petitioner before the police that
the police had taken custody of the child from the father, and produced
her before this Court today and on a mention having been made by Sri
Manjunath, learned Addl. Government Advocate appearing for the State,
the matter has been taken up for hearing today.
5
In this background, we have heard Sri Amit A Mandagi, learned
counsel for the petitioner as well as Sri Manjunath, Addl. Government
Advocate for respondents 1 to 4 and Sri Vishnu Murthy, learned counsel
for respondent 5 who has also filed objections today. With consent of
learned counsel for the parties this petition is being disposed off at this
stage.
After having heard the learned counsel, the Bench retired to the
Chambers and talked to the child Ms Shreya. Thereafter, the parents of
the child i.e., petitioner and respondent 5 were also called and the Bench
talked to them in the presence of the child. In view of the admission
made by the parents that after 8.5.2015, when the child was taken into
custody by the father, the mother did not get any opportunity to talk to
her daughter, the Court permitted the child and the petitioner (mother) to
talk to each other for few minutes in a different room. Thereafter, the
Bench again talked to the child in the chambers, and then the hearing of
the matter was resumed in the Court room.
It is a settled law that the welfare of the child is of paramount
importance. The child has been admittedly in the custody of the mother
ever since the separation of the parents in 2010. Normally the child is to
6
remain in the custody of the mother, especially when it is a girl and is of
such tender age, which has been there in this case in normal course.
There is nothing wrong in the father wanting the custody of the child but
the same has to be got legally, in accordance with law. As we mentioned
hereinabove, it is the manner in which the custody of the child was taken
by the father on 8.5.2015 which is objectionable, as the same was done
deceitfully. The communication made by respondent 5 to the petitioner
was to the effect that he wanted to give a gift to his daughter at a
function to be held on 10.5.2015, which function was never held and no
such gift is said to have been given to the daughter. On the very same
day i.e., on 8.5.2015, the father wrote to the police that he wants to take
his daughter on a vacation. Not only that contents of paragraph 5 of the
objection statement filed by respondent 5 are again contrary to the
admitted SMS message, from the above, it is clear that the intention of
respondent 5 was to somehow take the custody of the child from the
mother, with whom the daughter was staying for the last five years i.e.,
since the separation. It is also noteworthy that the child Ms Shreya is a
student of class VI at Sophia High School, and after the summer
vacation, the school has reopened on 1.6.2015, but, she has not been
permitted by the father to go to school. The Court had asked this
question to respondent 5 (father) as to why he did not permit his
7
daughter to go to school from 1.6.2015 and in reply, it was said that he
had withdrawn her admission from Sophia High School, and wanted to
admit her in an International School, the session of which was to begin
from August 2015. However, he could not say as to in which
International School he had got admission for his daughter.
In the beginning, when the Bench talked to the child, she had said
that she was happy with both the parents, and that her father had asked
her not to go to school as he was getting her admitted in an International
School. However, in the second meeting, the child categorically stated
she wanted to go to the same school, and would like to stay with her
mother.
From the conduct of the respondent 5 (father) it is clear that he
had managed to get the custody of the child in an illegal manner by
misrepresenting, and thus the continuance of the custody of the child
with respondent 5 would become illegal, even though he was the father
of the child. If custody of the child is to be taken by the father from the
mother, it has to be taken in accordance with law under the prescribed
procedure. The custody of a child, who is legally staying with her
mother, can be shifted to the father only in accordance with law, and if
8
done otherwise, the same would amount to illegal custody with the
father. Such is the case at hand.
In the circumstances, since the child had always remained with
her mother ever since the separation between the petitioner and
respondent 5 in the year 2010, and she was regularly attending the
school from her mother’s residence and admittedly, her custody always
remained with the petitioner (mother) and further, the wish of the child
as expressed before the Bench is also that she would like to stay with
her mother and attend the same school (Sophia High School), we are of
the opinion that at present, the custody of the child should be given to
the petitioner (mother). We say this especially because the father took
the custody of the child by misrepresenting before the mother, and
immediately on the same day, sent a communication to the police, which
was totally contrary to the SMS (message on the mobile phone) sent to
the mother.
The child Ms Shreya has been brought to the Court by WPC 2870
– Ms Kalavathi. We direct that the custody of the child be given to the
mother forthwith. For the welfare of the child, it is provided that she
shall be permitted to meet her father in the same manner as was being
9
permitted earlier i.e., prior to 8.5.2015, but the custody of the child will
remain with the mother. We may further observe that in case the father /
respondent 5 wishes to take custody or have visiting rights of the child,
he may approach the competent court under the relevant law, where the
matter shall be considered and dealt with, in accordance with law, after
the parties adduce the evidence in support of their case.
The petition stands allowed to the extent as is indicated above.
However, there shall be no order as to costs.
Sd/-
Judge
Sd/-
Judge
An