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2018 DIGILAW 1252 (KAR)

Santhosh C Samuel v. Blessy S. S.

2018-12-21

B.VEERAPPA

body2018
ORDER : The petitioner filed the present writ petition against the order dated 13.12.2018 made on I.A. No. IX in G & WC No.232/2014, permitting the petitioner to exercise visitation rights on the child Justin S. Samuel from 10.00 a.m. to 5.00 p.m. on 27th and 29th December, 2018 and 1st January, 2019, and the place of pick-up and drop back of the child shall be the residence of the respondent. Further, petitioner is directed not to give ill-advise to the child and to consider the likes and dislikes of the child while exercising custody rights on the above said days. The respondent – wife is also directed to handover the child to the petitioner on the above said days and time and petitioner is directed not to retain the child after the above said days and time. The petitioner filed the petition under Secs. 6 and 7 read with Sec. 17 of the Guardians and Wards Act, 1890, for appointing and declaring him as the guardian of his child Justin Samuel and grant him permanent custody of his minor child raising various contentions. 2. The respondent – wife filed detailed objections denying all averments, except the averment at para 13 of the petition and sought for dismissal of the petition. 3. During the pendency of the proceedings, petitioner filed I.A.No.9 under Sec. 12 of the Guardians and Wards Act read with Secs. 9 and 10(3) of the Family Courts Act, to direct the respondent for interim custody of his 11 year old minor son Master Justin S. Samuel, during Diwali and Christmas Vacations i.e. on Christmas, 25-12-2018 for Kids’ Christmas Party and on 27.12.2018 @ 10.00 hrs. to 28.12.2018 @ 12.00 hrs. (one overnight) and on 30.12.2018 @ 07.00 hrs. to 01.01.2019 @ 17.00 hrs. (two overnights). 4. The said petition was resisted by the respondent – wife by filing detailed objections. The Family Court passed the impugned order on 13.12.2018, permitting the petitioner visitation rights only for 3 days. Hence, the present writ petition is filed. 5. I have heard the learned counsel for the parties to the lis. 6. Sri. Uday Holla, learned Senior counsel for the petitioner vehemently contended that the order passed by the Family Court granting only visiting rights and rejecting the prayer for overnight stay for three days is erroneous and contrary to the material on record. 5. I have heard the learned counsel for the parties to the lis. 6. Sri. Uday Holla, learned Senior counsel for the petitioner vehemently contended that the order passed by the Family Court granting only visiting rights and rejecting the prayer for overnight stay for three days is erroneous and contrary to the material on record. He would further contend that the impugned order does not whisper on the mental health condition of the respondent. He would further contend that the learned Judge failed to take judicial notice of the document dated 26.11.2018 to show that there is no evidence of schizoid or borderline personality disorder. He would further contend that the trial Court erred in holding that it is premature to grant overnight custody of the child to the petitioner. Whereas, the petitioner has succeeded in having overnight custody of his son in 2015 itself and the same would have continued, if not for the repeated fraud on Court by the respondent. Therefore, he sought to allow the petition. 7. Per contra, Sri. Harish, learned counsel for the respondent – wife sought to justify the impugned order and contended that from 2014 till 2018, the petitioner was given only visitation rights by the repeated orders passed by the Family Court and the Family Court never gave overnight custody of the child to the petitioner. He would further contend that the petitioner is suffering from `Borderline Schizoid Personality Disorder’ and therefore, if the custody of the child is given to the petitioner as prayed, it will endanger the life of the child. Therefore, he sought to dismiss the petition. 8. Having heard the learned counsel for the parties, it is an undisputed fact that petitioner and respondent are husband and wife and out of their wedlock, they have a child for whose custody both of them are fighting. It is the specific case of the petitioner – husband, in the petition filed, at para 13, he has categorically stated that when the child was about 9 months old, the respondent took up an assignment in China and left the baby in the sole and whole care of the petitioner. The petitioner single-handedly took care of the child then with some help from his mother and the petitioner worked from home to be 24 X 7 near the child. The petitioner single-handedly took care of the child then with some help from his mother and the petitioner worked from home to be 24 X 7 near the child. Further in the month of December, 2011, the respondent went away to USA on a three week assignment leaving the child with the petitioner and the petitioner was taking care of his child, risking his job. Though the entire averments made in the petition were denied by the respondent – wife by filing statement of objections, at para 11 of the objections it is admitted by the respondent - wife that it is true that she went for a two short overseas assignment to China and then to USA, but it was under the compulsion of the petitioner – husband that she was forced to undertake the assignments abroad to bring hme more money in the form of additional allowance and increased salary. Anyway it is not the case of the petitioner that the respondent had undertaken overseas assignments against his wishes. 9. It is a fact that when the child was nine months old, the petitioner has taken care of the child when the respondent – wife had been to China and USA on short assignments. In the prayer, the petitioner has sought for interim custody of his child only on certain weekend and Christmas Vacations i.e. on 25-12-2018 for Kids’ Christmas Party and on 27.12.2018 @ 10.00 hrs. to 28.12.2018 @ 12.00 hrs. (one overnight) and on 30.12.2018 @ 07.00 hrs. to 01.01.2019 @ 17.00 hrs. (two overnights). 10. Be that as it may, the fact remains that the child is now aged about 11 years and the child is capable of understanding both the father and mother. It is also not in dispute that visitation rights were given to the petitioner – father for all these years. It is further not disputed that during any such visitation rights, the petitioner had either harassed or harmed the child. If this is the fact situation, there is no need to apprehend that the father will harm his own child and it is also not in dispute that the father is living with his parents who will also take care of the child during its stay for two days i.e. on 30.12.2018 at 07.00 hours to 01.01.2019 at 17.00 hours (two overnights). 11. 11. During the stay of the child, the petitioner to ensure that he shall not physically harm the child and he shall take all necessary care of the child, with the assistance of his mother. The grand-mother, who is also present in the Court hall, shall ensure that she shall take care of the child during the two overnights. The child shall sleep with the grand mother for the two overnights. 12. The petitioner – father shall file an affidavit before this Court that during the two overnights, he will not harm the child mentally and physically and he will send back the child on 01.01.2019 at 17.00 hours to the respondent – wife at her residence. If the respondent – wife permits, the petitioner can also stay with the child in the house of the respondent. 13. Accordingly, the writ petition is disposed of with the above observations.