Dismissed

Sri. B. S. Karthik v. State of Karnataka

Karnataka HC8 Feb 2024WPHC/111/2023

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a habeas corpus petition filed by a father seeking custody of his two-and-a-half-year-old daughter after his wife's death. The Court found the child's detention with her grandmother was not illegal and that the welfare of the minor required maintaining her stable environment rather than shifting custody to the father.

What did the court decide?

The petition praying for production of the minor and handover of custody to the petitioner was dismissed with no order as to costs.

Sri. B. S. Karthik Vs State of Karnataka — Child Custody and Guardianship | Karnataka HC (2024)

¶1

W.P.H.C No.111/2023

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 8^TH DAY OF FEBRUARY, 2024

¶5

PRESENT

¶6

THE HON’BLE MR. P.S. DINESH KUMAR, CHIEF JUSTICE

¶7

AND

¶8

THE HON’BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

¶9

W.P.H.C NO. 111 OF 2023

¶10

BETWEEN:

¶11

SRI. B.S. KARTHIK S/O B.N. SRINIVAS AGED ABOUT 34 YEARS RESIDING AT HOUSE NO.154 DVG ROAD, 17^TH WARD BAGEPALLI, CHIKKABALLAPUR KARNATAKA-561 207.

¶12

ALSO AT: NO.19, 1^ST MAIN ROAD, GMR LAYOUT NEAR JAWAHAR VIDHYA KENDRA RMV 2^ND STAGE, GEDDALAHALLI SANJAY NAGAR MAIN ROAD BENGALURU-560 094. …PETITIONER

¶13

(BY SHRI. SANJAY NAIR, ADVOCATE)

¶14

AND:

¶15

STATE OF KARNATAKA HOME DEPARTMENT GOVERNMENT OF KARNATAKA VIDHAN SOUDHA BANGALORE-560 001. REPRESENTED BY ITS PRINCIPAL SECRETARY

¶16

¶17

W.P.H.C No.111/2023

¶18

THE INSPECTOR BAGEPALLI POLICE STATION BAGEPALLI, KARNATAKA-561 207.

¶19

SMT. SUSHEELA .B W/O LATE KRISHNAMURTHY B AGED ABOUT 61 YEARS RESIDING AT KONDAMVARAMPALLI VILLAGE MALLASANDRA POST, BAGEPALLI TALUK CHIKKABALLAPURA DISTRICT KARNATAKA-561 207.

¶20

SMT. SHILPA .B.K W/O PRASANNA D/O LATE KRISHNAMURTHY .B SHREE RAM ENCLAVE, NO. 3B/1 BESIDE KRUTHIKA HOSPITAL 2^ND MAIN ROAD NEAR NANJAPPA CIRCLE DODDABOMMASANDRA BENGALURU-560 097.

¶21

SMT. SHRAVYA .B.K W/O SUHAS SRIDHAR D/O LATE KRISHNAMURTHY .B RESIDING AT NO.351, 4^TH C CROSS 5^TH BLOCK, BANASHANKARI 3^RD STAGE BANASHANKARI BANGALORE-560 085. …RESPONDENTS

¶22

(BY SHRI. M.V. ANOOP KUMAR, HCGP FOR R1 AND R2; SHRI. KARTHIK SHANKARAPPA, ADVOCATE FOR SHRI. S. SHANKARAPPA, ADVOCATE FOR R3 TO R5)

¶23

THIS WPHC IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS OR ANY OTHER ANY APPROPRIATE WRIT, ORDER FOR PRODUCTION OF THE KUM. SAI VENNELA.B.K BEFORE THIS HON’BLE COURT AND TO HANDOVER THE CUSTODY OF KUM. SAI VENNELA.B.K TO THE PETITIONER AS HER SOLE AND NATURAL GUARDIAN.

¶24

THIS WPHC, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 14.12.2023, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, CHIEF JUSTICE , PRONOUNCED THE FOLLOWING:-

W.P.H.C No.111/2023

ORDER

This writ petition by the father of a minor child,

¶29

Sai Vennela, aged about 2 years 6 months, is presented with following prayers:

¶30

i. Issue a writ in the nature of Habeas Corpus or any other any appropriate writ, order, for production of the Kum. Sai Vennela B.K. before this Hon'ble Court and to handover the custody of Kum. Sai VennelaB.K. to the Petitioner as her sole and natural guardian, in the interest of justice.

¶31

ii. Such other writ, order or direction that this Hon'ble Court fit to pass in the circumstances of the case.

¶32

Heard Shri. Sanjay Nair, learned Advocate for the Petitioner, Shri. M.V. Anoop Kumar, learned HCGP for the State and Shri. Karthik Shankarappa, learned Advocate for Respondents No. 3 to 5.

¶33

Petitioner-Karthik’s case is, he was married on 21.08.2016. Vennela was born on 17.04.2021. His wife Shruthi passed away on 23.07.2023 due to cancer. During the period of treatment, Shruthi lived with her

¶34

¶35

mother¹ . After Shruthi’s death, Vennela continued to stay with Shruthi’s mother.

¶36

Karthik has filed this writ petition, alleging illegal detention of his child by Susheela.

¶37

Praying to allow this writ petition, Shri. Nair, for

¶38

the petitioner, submitted that:

¶39

as per Section 6(a) of the HMG Act² , petitioner being the father is the natural guardian and entitled to Vennela’s custody;

¶40

Karthik is currently working in M/s. IQVIA and earns Rs.79,375/- p.m. He is capable of providing Vennela proper education and other facilities for her best upbringing and welfare;

¶41

despite several requests, respondents No. 3 to 5 have failed to handover Vennela’s custody to Karthik;

¶42

1 Susheela

¶43

2 Hindu Minority and Guardianship Act, 1956

¶44

W.P.H.C No.111/2023

¶45

¶46

welfare of a child is of paramount consideration in custody matters. Karthik being the only surviving parent, Vennela needs his love, care and affection;

¶47

Karthik’s parents are capable of taking care of Vennela.

¶48

Opposing the writ petition, Shri. Shankarappa,

¶49

for respondents No. 3 to 5 submitted that:

¶50

• Section 13 and 19 of Guardians and Wards Act, 1890, provides that welfare of the minor is of paramount consideration and the father's right to guardianship is subordinate to the welfare of the child;

¶51

Vennela was under Susheela’s care right from the time when Vennela’s mother was diagnosed with cancer. Susheela has taken care of the child for more than two years. Vennela is ‘at home’ and comfortable with her grandmother.

¶52

W.P.H.C No.111/2023

¶53

¶54

It is not desirable to suddenly shift a tender

¶55

child to a new atmosphere;

¶56

Susheela has relocated from her native place to Bangalore and admitted Vennela in a Kindergarten School. She has sufficient source of income to take care of herself and Vennela;

¶57

Karthik is an alcoholic and a smoker. He has assaulted Shruthi several times in drunken state. Karthik has never taken care of Shruthi whilst she was under treatment for cancer and these habits would put Vennela’s life at risk;

¶58

Karthik has started looking for alliances to marry again. Therefore, giving custody of Vennela to Karthik is not desirable;

¶59

in support of these contentions, reliance is placed on Shyamrao Maroti Korwate Vs. Deepak

Kisanrao Tekam³ .

3 (2010) 10 SCC 314

W.P.H.C No.111/2023

It was further submitted by Shri. Shankarapa

¶65

that respondents No. 3 to 5 are willing to furnish an undertaking before this Court that they would not seek any financial support from Karthik to raise Vennela in future.

¶66

We have carefully considered rival contentions and perused the records.

¶67

This is a case involving a female child-Vennela aged two years and six months born to Karthik and deceased Shruthi. When Vennela was six months old, Shruti was diagnosed with cancer. During the treatment, Shruthi along with minor Vennela shifted to her maternal home. Shruthi died on 23.07.2023. Thereafter, Vennela continued to remain with Susheela.

¶68

In substance, Karthik’s case is that, after Shruthi’s death, Susheela has been illegally retained Vennela’s custody, depriving him of his right to custody.

¶69

W.P.H.C No.111/2023

¶70

¶71

In support of this contention, Shri. Nair has placed reliance on T ejaswini Gaud and Others Vs. Shekhar Jagdish Prasad Tewari and Others⁴ and urged that the facts in that case are similar to the case on hand. We have perused the said authority. In that case, custody of a minor daughter was in question. After mother’s death, the minor continued to be in custody of her mother’s relatives. Father being the only surviving parent and her natural guardian, sought for the custody her daughter. The Apex Court granting the custody of the minor to her father held thus:

¶72

“ 35 . The welfare of the child has to be determined owing to the facts and circumstances of each case and the Court cannot take a pedantic approach. In the present case, the first respondent has neither abandoned the child nor has deprived the child of a right to his love and affection. The circumstances were such that due to illness of the parents, the appellants had to take care of the child for some time. Merely because, the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child. It is not the case of the appellants that the first respondent is unfit to take care of the child except contending that he has no female support to take care of the

4 (2019) 7 SCC 42

W.P.H.C No.111/2023

child. The first respondent is fully recovered from his illness and is now healthy and having the support of his mother and is able to take care of the child.”

¶77

12. We may record that in Tejaswini Gaud , the Apex

¶78

Court in para 19 has examined the aspect of issuance of writ of habeas corpus in deciding the custody of child and it reads as follows:

¶79

“19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.”

¶80

(Emphasis Supplied)

¶81

W.P.H.C No.111/2023

¶82

¶83

The Apex Court adverting to Nithya Anand Raghavan vs. State of NCT of Delhi⁵ in Rajeswari Chandrashekar Ganesh Vs. The State of Tamil Nadu and others⁶ , has held that the object and scope of a writ of Habeas Corpus in the context of a claim relating to custody of a minor child is to ascertain whether the custody of child is illegal and whether the welfare of the child requires that the present custody should be changed and the child be handed over to the care and custody of any other person.

¶84

It is not in dispute that Vennela’s custody is with her maternal grandmother. As held in Tejaswini Gaud , while dealing with a writ of Habeas Corpus, Court must determine as to whether the detention of minor child by a parent or others is illegal and without any authority of law. It was contended by Shri. Shankarappa, that Vennela has been under the care and custody of Susheela, ever since child’s mother was under treatment for cancer. It was also urged

¶85

5 (2017) 8 SCC 454

¶86

6 2022 Live Law SC 605

¶87

W.P.H.C No.111/2023

¶88

¶89

that Karthik never bothered to take care of his wife while she was suffering with cancer nor the minor child. Though, this claim is refuted, it is not in dispute that Shruthi was in her parents house during the treatment. Vennela is of a very tender age of 2 and half years. She has spent more than 2 years with her grand mother Susheela. In addition, there are allegations of consumption of alcohol, smoking and proposal to remarry against Karthik.

¶90

Thus, in a case of this nature, two things are required to be examined. Firstly, whether the custody is lawful? Secondly, whether it is in the interest of the child to order change of custody?

¶91

16. It is well settled that while taking a decision with regard to the custody of a child, ‘welfare of the child’ is of paramount consideration. (See. SheoliHati Vs. Somnath Das⁷ ). The welfare of the child differs from case to case.

¶92

7 (2019) 7 SCC 490, para 17

¶93

W.P.H.C No.111/2023

¶94

¶95

17. In N ithya Anand Raghavan Vs. State (NCT of Delhi) and Ors⁸ , the Apex Court has held that while considering interest of the child, Court must take into account all the attending circumstances and totality of situation on case to case basis.

¶96

18. In Tejaswini Gaud , the Apex Court has held as

¶97

follows:

¶98

“26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child.”

¶99

(Emphasis Supplied)

¶100

19. It was submitted by Shri. Nair that, as per Section 6 of the HMG Act, father is the natural guardian. Thus, Karthik is entitled for minor’s child custody. In Surinder Kaur Sandhu Vs. Harbax Singh Sandhu⁹ , it is held that such a provision cannot supercede the paramount

¶101

8 (2017) 8 SCC 454, para 51

¶102

9 (1984) 3 SCC 698, para 97

¶103

W.P.H.C No.111/2023

¶104

¶105

consideration as to what is conducive to the welfare of the minor. It is the welfare of the minor alone which is of paramount importance.

¶106

While exercising its discretionary jurisdiction under Section 226 of the Constitution of India, in exceptional circumstances the Court may grant custody of a child to the grandparents. While doing so, the Court must keep in mind

¶107

that such issues are sensitive in nature and utmost consideration must be given for welfare of the child such as care, love and affection that a child requires in growing stage of its life.

¶108

As noticed hereinabove, it is not in dispute that

¶109

Shruthi was staying in her parental home during the treatment period. She was suffering from cancer and succumbed to the same. Susheela has taken care of Vennela

¶110

from a very tender age. The minor child is also bereft of mother’s love and care. She is accustomed to the

¶111

W.P.H.C No.111/2023

¶112

¶113

atmosphere in her grandmother’s house. Sudden shift of custody to a new atmosphere may traumatise the child.

¶114

In view of the undisputed facts, recorded hereinabove, we are of the considered view, Vennela’s custody with Susheela is not illegal. Also, transfer of custody to Karthik at this stage is not desirable.

¶115

Therefore, in our considered opinion, Vennela

¶116

being a girl child of a tender age, it is in her best interest to remain in the custody of her grandmother.

¶117

In the light of the above discussion, in our view, this is not a fit case to exercise the extraordinary jurisdiction under Article 226 of the Constitution and accordingly, it is

dismissed .

No costs.

Sd/CHIEF JUSTICE

Sd/JUDGE

SPS

Sri. B. S. Karthik v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri. B. S. Karthik v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Siddhartha. S Vs Shri. Basavaraju. Kas

M. K. Kathyayini Vs Sri. Anjum Parwez

Sri Hanumantaraya Vs Dr Prakash G C., IAS

Prof. K C Krishne Gowda Vs Sri. G Jagadeesha I.A.S.

Sri Narasimhegowda Vs Dr Kumar IAS

Smt Vennigala Mokshalakshmi Vs Ravikumar