Mother Fails To Handover Child's Custody To Father Despite Judicial Order, Karnataka High Court Requires Her Employer To Hold Back Pay

The Karnataka High Court on Wednesday directed the Police to contact the employer of a woman who failed to handover custody of her minor child to her husband despite a judicial order, and ask the employer to hold back her pay.

A division bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde said the benefits payable to her be held till custody of the daughter is handed over.

The bench was hearing a habeas corpus petition filed by the father. He was aggrieved by non-execution of Family Court order passed in March last year allowing his petition under Section 25 of the Guardians and Wards Act, 1890 and directing the mother to hand over their 7-yrs old girl child to him.

Court said not handing over custody of the minor child to father by the wife, even after orders are passed by the courts granting custody have attained finality, amounts to abuse of process of law and cannot be countenanced.

Earlier, the court had issued non-bailable warrants against the wife and had directed the Commissioner of Police, Bengaluru to keep her present in court.

On Wednesday, the bench directed the Commissioner of Police, Bangalore to ensure that the concerned station house officer hands over the custody of the daughter to the father, within 24 hours. It also directed initiation of suo-motu criminal and civil contempt proceedings against the wife.

The bench observed “The wife cannot be permitted to continue with the custody of the daughter as the same is in contravention of judgments of the court, which have attained finality and is binding on the parties.”

The counsel for the wife had contended that the daughter is not in illegal custody. However, the High Court placed reliance on Supreme Court judgment in Rajeshwari Ganesh Vs State of Tamil Nadu and others, which held that primary object of habeas corpus petition for child's custody is to determine in whose custody the best interest of the child will be advanced.

“In view of the aforesaid enunciation of law by Hon'ble Supreme Court, it is evident that in child custody matters, when the child is in custody of one of the parents, a writ of habeas corpus is maintainable,” High Court thus held. Following which it passed the directions.

Case Title: ABC v. XYZ

Case No: WPHC 30/2023

Citation: 2023 LiveLaw (Kar) 211

Date of Order: 07-06-2023

Appearance: Senior Advocate S Sreevatsa for Advocate N Gowtham Raghunath for Petitioner.

SPP-II V.S. Hegde for R1 and R2.

Senior Advocate M.T. Nanaiah for Advocate M.C. Kumaraswamy for R3.

Click Here To Read/Download Order