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Custody Disputes Involve "Human Issues", Can't Devise Straight-Jacket Formula For Resolution: Karnataka High Court
Mustafa Plumber
21 Oct 2022 12:23 PM IST
The Karnataka High Court has reiterated that disputes involving custody of minor children are complex, involving "human issues" and thus, there can be no straight-jacket formula to resolve the same.A division bench of Justices B Veerappa and KS Hemalekha said that such cases have to be decided on their own facts and circumstances, and no hard and fast rule can be laid down.Further referring...
The Karnataka High Court has reiterated that disputes involving custody of minor children are complex, involving "human issues" and thus, there can be no straight-jacket formula to resolve the same.
A division bench of Justices B Veerappa and KS Hemalekha said that such cases have to be decided on their own facts and circumstances, and no hard and fast rule can be laid down.
Further referring to Section 6 of the Hindu Minority and Guardianship Act, 1956 which stipulates that natural guardian of children is father but ordinary custody of the minor below 5 years with the mother, the bench said.
"A custody dispute involves human issues which are always complex and complicated...if it is found that the welfare of a minor, whose age is more than 5 years requires that his custody should be with the mother, the Court is bound to do so. In the same way, if interest of the minor which is the paramount consideration requires that the custody of a minor child should not be with the mother, the Court will be justified in disturbing the custody of the mother even if the age of the minor is less than five years."
In such a scenario, the Court observed that the rights of the father or the mother, as the case may be, are bound to be affected. However, it observed that the rights of the parties litigating over the custody issue are irrelevant as the predominant consideration is child's welfare.
The Court made these observations while disposing of a petition filed by a woman seeking directions to immediately trace and produce her minor children and direct her husband to handover them to her.
The petitioner submitted that they resided in Mexico and the husband, on the pretext of taking the children for a walk in the park, brought them to India. The Petitioner approached the Police authorities, but in vain. Hence, the present habeas corpus writ petition was filed.
The bench on going through the records said that whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents.
The court appealed to the couple to come out with an interim arrangement for sharing custody of the children by filing a joint memo, till the aggrieved party either mother/father approaches the appropriate for interim custody/permanent custody.
Accordingly the couple in their memo in which it was agreed upon that the custody of the children will be with the petitioner from Sunday 6.00 PM to Friday 1.30 PM. The custody of the children will be with the Respondent No.4 from Friday 1.30 PM after the lunch of children till Sunday 6.00 PM. He is permitted to visit the children at the petitioner's residence on weekdays in the evening for two hours only.
The bench accordingly disposed of the petition and directed both the parties to not misuse the interim arrangement.
Case Title: MRS. DANIELA LIRA NANY v. THE STATE OF KARNATAKA
Case No: WRIT PETITION HABEAS CORPUS NO. 77 OF 2022
Citation: 2022 LiveLaw (Kar) 420
Date of Order: 30TH DAY OF SEPTEMBER, 2022
Appearance: S. VIVEK REDDY, SENIOR COUNSEL FOR BEENA P. K., ADVOCATE for petitioner; THEJESH P., HCGP FOR R1 TO R3; RAJ PRABHU, ADVOCATE FOR R4
