Karnataka High Court Issues Non-Bailable Warrant Against Mother Over Failure To Hand Over Minor Child's Custody To Father Despite Judicial Order

A vacation bench of Justice S Sunil Dutt Yadav and Justice C M Poonacha while hearing the habeas corpus petition filed by the father seeking directions to produce the minor child, said “This is a matter requiring serious attention in light of respondent No.3 trying to evade the Court process and it is clear that she does not intend to appear until coercive steps are taken and even otherwise, it appears that the actions of respondent No.3 amounts to an abuse of judicial process.”

Following which it issued directions to ensure her presence before the Court. “Needless to state that in light of the order dated 03.03.2022 passed in G & WC No.128/2018 and taking note of the power conferred under Section 25 of the Guardians and Wards Act, 1977, while executing the Non-bailable Warrant, the Police Authorities to ensure that the child accompanies respondent No.3, when she is produced before this Court. The Police Authorities shall take all such measures as may be appropriate to take care of the interests of the child during transit, in the event the respondent No.3 is arrested outside the jurisdiction of this Court,” the bench added.

The Family Court had allowed the guardianship application filed by petitioner Dr Rajeev Giri by order dated 03.03.2022 and the respondent-mother was directed to hand over the custody of the child within one month. However, despite a lapse of more than one year, the order remained unexecuted.

The woman challenged the family court order before the High court, which by its order dated 31.01.2023 had dismissed the appeal and subsequently, the Special Leave petition against the high court order was also rejected.

The High Court had also directed the mother to hand over custody to the child's father, after observing that she herself was more attentive towards her illicit relationship at work rather than welfare of her child.

“The Courts are not only required to consider the comforts and attachments of the child but should also take into consideration the surroundings in which the child is growing, the moral and ethical values which the child learns by observation, availability of care and affection when the child needs it most and thereafter strike a balance which would be more beneficial for the child's welfare and interest," it had observed.

During the hearing on Thursday, the bench noted that on an earlier occasion when it had issued notice, the woman had filed a memo in the Registry- which made it is clear that she is aware of the hearing of the matter "despite which she is evading her presence".

Public Prosecutor V.S.Hegde submitted to the court that despite best efforts made by the Police Authorities they have not been able to trace the mother and there are reasons to believe that she is in Delhi. Further, from the Status Report filed by Police, efforts to serve notice on her could not fructify as the respondent changed her residence and is not available at her Office also. "The Foreign Regional Registration Offices (FRRO) has been informed and a Look Out Notice has also been issued,” the Court was informed.

Accordingly the court directed that while executing the Non-bailable Warrant in the event, the respondent No.3 is in a jurisdiction outside Karnataka, the appropriate Police Authorities are directed to co-operate in ensuring the execution of Non-bailable Warrant issued to respondent No.3.

Following which it posted the matter for further hearing on May 9.

Case Title: ABC v. XYZ

Case No: WPHC 30/2023