MS ALIA ISMAIL MEMON v. MOHAMMED ZAID HAROON

the mother has admitted the fact that the first child, aged - 6 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR about 7 years was alone in the hotel and she approached Hosakote Police Station and in the Police Station the second child was handed over to the father. The Family Court has also considered the welfare of the child and further, under the Mohammedan Law father is the natural guardian of the minor child aged more than 7 years. The second child is aged less that 7 years and the child can be given to the custody of the father. Considering all these aspects and the judgments that are relied on by the father, the Family Court observed that the father cannot be denied to have the custody of the second child also. Therefore, the father is entitled to have continued interim custody of the minor children during the pendency of the petition.

6. Aggrieved by the said order, the mother has come up before this Court. A Co-ordinate Bench of this Court had heard this matter on 21.02.2025 and permitted the mother to have the visitation of the two minor children on 22.02.2025 between 12:00 noon and 4:00 p.m. at Richmond Park Play Area, Richmond Town, Bengaluru. Then on 28.02.2025, the said order was directed to be continued on 01.03.2025 and - 7 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR

08.03.2025. Additionally, the mother was permitted to speak to the minor children by video and audio call for a limited extent of 20 minutes every day between 6:00 p.m. and 7:00 p.m., which shall be facilitated by the father. Then on 11.03.2025, slight modification was made to the order and on every Saturday between 12:00 noon and 4:00 p.m., the father was directed to bring the children to the Cubbon Park or Funkey Monkey Park, Bengaluru, until further orders. Then the matter came up before this Court on 02.05.2025 and this Court passed the following order: "Learned counsel appearing for the petitioner/mother submits that the Coordinate Bench of this Court had granted visitation to the mother on every Saturday between 12.00 noon to 4.00 pm., in the Cubbon Park or Funkey Monkey Park, Bengaluru. It is submitted that the house of the mother is nearby and it will take hardly 2-4 minutes. It is further submitted that the children require love and affection of the mother and there may be a direction for the overnight custody of the children.

2. Learned counsel appearing for the respondent/ father submits that on the merits of the matter and also about what has transpired before the visitation granted by the Court is in the interest of the children, no overnight custody shall be given to the mother. It is submitted that between 15.05.2025 and 21.05.2025 there is a wedding in the family, during that period, the mother cannot exercise the visitation.

3. On the last occasion, this Court had directed both the children to be present before this Court and this Court had interacted with the children. After interacting with the children and also hearing the arguments of the learned counsels on either side, this Court balancing the interest of both the parties is passing the following, HC-KAR NC: 2025:KHC:37427 WP No. 2921 of 2025 - 8 - ORDER i. On every Saturday and Sunday, the mother can exercise the visitation between 10.00 am. and 4.00 pm., in her residence which is situated at the following address: “No.403, 25/1, Berlie Street, Langford Town, Bangalore- 560 025.” ii. The father or Mr. Irfan Zaid, who is the caretaker of the children shall drop the children at 10.00 am. and they can pick up the children at 4.00 pm. and the care taker can stay back at the ground floor of the premises during the visitation and take the children back to the father’s place. iii. This arrangement shall go on till the Summer Vacation-2025. Once the school reopens, the mother can exercise the visitation on Sunday between 10.00 am., to 4.00 pm. with the same condition as per the earlier order. iv. audio call shall continue. As per the earlier arrangement, the video call and List this matter on 30.06.2025. Basing on how the visitation went on and on the response of the children further orders will be passed."

7. On 30.06.2025, it was submitted that the visitation is going on well and the father submitted that after a few hours, the children are not comfortable to stay with the mother and they are insisting to come back and to understand what exactly is going on, this Court wanted to interact with the children and this Court had interacted with the parents and the children on

01.07.2025 and passed the following order: "On 02.05.2025, this Court had passed an order whereby on every Saturday and Sunday, the mother can - 9 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR exercise the visitation between 10:00 a.m. and 4:00 p.m., at her residence and also certain other conditions were imposed. The arrangement on Saturdays and Sundays can go on till the Summer Vacation 2025 and once the school reopens, the mother can exercise the visitation on Sunday between 10:00 a.m. to 4:00 p.m.

2. This Court had interacted with the children. The elder son says that on Sunday, the father, grandfather and other cousins will be at home and he wants to go to the mother on Saturday.

3. The mother as well as the learned counsel appearing for the mother submits that as the children are comfortable with the mother, the mother can be given overnight custody.

4. There are allegations and counter allegations. According to the mother, the step mother is talking ill about the mother and the boy says that the mother is always advising him not to listen to the step mother and the boy is not comfortable with that. Other than that there are no other complaints.

5. According to the father, the mother is not involving herself and she could not develop bonding from 02.05.2025 till today.

6. Having interacted with both the parties and in the interest of the children, this Court is passing the following order: ORDER i. The mother can exercise the visitation on every Saturday between 10:00 a.m. to 4:00 p.m. and this timing shall be strictly followed. By any chance, if the children are late by one hour, the time shall be extended accordingly. ii. The father, the step mother and the mother shall be careful while interacting with the children and they should not talk anything ill about the other person. iii. The father shall share all the school details and other activities of the children. When the children are with the mother and while she is interacting with them, she shall try to develop bonding and acceptance with the children.

6. List this matter on 04.08.2025 at 5:00 p.m. in the chambers and looking at what has transpired on all - 10 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR those days of visitation, the Court will consider the mother's request for overnight custody.

7. On 04.08.2025, the children shall be present and this Court will interact with them in the chambers at 5:00 p.m."

8. Then on 04.08.2025, this Court had interacted with the parents and the children again and passed the following order: "This court had interacted with both the parents and the children. The younger son is comfortable with the mother. As complained by the father, during visitation the elder son is calling the father and wants to come back to the father and most of the time he is over phone. The mother submits that the younger son is very much attached with her and he can stay overnight with her. The father submits that previously how things have happened, he has no confidence on the mother and he is very much concerned with the security of the children. Having interacted with the children and considering the concern of both the parents this court is passing the following: ORDER i. On coming Saturday both the children along with the care taker shall reach the mother’s place by 3.00 p.m. and on next day i.e., Sunday then can take back the children by 11.00 a.m. ii. If the elder son is not showing any interest for the overnight stay, the father shall convince the elder son to stay back or at least the younger son shall be with the mother over night. During the overnight stay of the children with the mother, the care taker can be there along with the children. List this matter on 11.08.2025 before the court."

9. On 11.08.2025, this Court had passed the following order: - 11 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR "This Court on 04.08.2025 had passed an order and directed that on Saturday both the children along with the care taker shall reach the mother’s place by 3.00 p.m. and on next day i.e., on Sunday the father can take back the children by 11.00 a.m. and it was also observed that if the elder son is not showing any interest for the overnight stay, the father shall convince the elder son to stay back or at least the younger son shall be with the mother overnight. During the overnight stay of the children with the mother, the care taker can be there along with the children.

2. Today, when the matter came up, both the father and mother are before this Court. Learned counsel appearing for the father submits that in fact, the elder one had stayed with the mother, but the younger one was not at all interested for overnight stay as he was continuously crying and yelling, that made the father to get the boy back and as far as the elder one is concerned, the father has encouraged him to stay back. In fact, in between 3-4 times the father had to go to the place and convinced the elder one to stay back. Learned counsel for the father further submits that they have no problem if the children are interested to stay back overnight, if they are compulsorily made to stay back, that’s where the children are stressed out.

3. Learned counsel appearing for the mother does not dispute the fact that the elder one stayed back and the younger one showed the reluctance. However, the learned counsel submits that why the younger one was like that, as earlier he was very comfortable with the mother, is not known. It is submitted that if the arrangement is continued, it would facilitate the mother to have the visitation.

4. Heard the learned counsels on either side. The fact that the elder son stayed back with the mother is a good development, may be the younger one was not comfortable on that day. This has to be taken slowly and once the children get used to the mother and once they start feeling comfortable, this Court can pass further orders. In the light of the above discussions, this Court is passing the following: ORDER i. On 16.08.2025, both the children along with the caretaker shall go to the mother's place by 3.00 p.m. - 12 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR and on 17.08.2025, the father can take the children back by 11 a.m. ii. If anyone of them is not comfortable and they do not want to stay back, the mother can send the child along with the caretaker to the father. In that case if they fail to stay overnight with the father, the mother shall have the visitation for at least three hours on the next day. iii. importance. At all times the children shall be given more List this matter on 20.08.2025."

10. Again on 20.08.2025, this Court had passed the following order: "This Court had already made an arrangement for visitation by order dated 11.08.2025. When the matter came up today, both the counsels submit that the elder son wants to stay back with the mother and the younger child insisted to leave by 8 o'clock and the same was compensated on the next day.

2. Learned counsel for the respondent/father submits that the father wants to take the children out of country and he requires passport of the children. Learned counsel for the petitioner/mother submits that the passports of the children and the mother are lost and to take the duplicate, the presence of the father is required.

3. Considering how the visitation is going on, as per the order dated 11.08.2025, the same arrangement shall go on. Hence, this Court is passing the following order: ORDER i. On 23.08.2025, 30.08.2025 and 06.09.2025, both the children along with the caretaker shall go to the mother's place by 3:00 p.m. and on the next day, the father can take the children back by 11:00 a.m. ii. If any one of them is not comfortable and they do not want to stay back, the mother can send the child along with the caretaker to the father. In that case if - 13 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR they fail to stay overnight, the mother shall have the visitation for at least three hours on the next day. iii. At all times, welfare of the children shall be the top priority. iv. The parties shall co-operate with each other in obtaining the new passports.

4. List this matter on 09.09.2025."

11. By virtue of the series of orders passed by this Court, the mother was having the overnight custody of both the children. When the matter came upon 09.09.2025, it is brought to the notice of the Court that in between 30.08.2025 to

04.09.2025, the whereabouts of the mother are not known and in spite of the repeated calls, she was not available. The father had made his best efforts to reach her, then finally he could contact her on 04.09.2024. On 09.09.2025, the advocate who was appearing for the mother submitted that he has given up vakalath and the present advocate has filed his vakalath and the matter was adjourned.

12. Today, when the matter came up, learned counsel for the petitioner/mother submits that there was no intention on the part of the mother not to intimate her absence to the father and she went to Bombay on a business purpose. As she was - 14 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR traveling, she could not contact the father and she finally contacted him on 04.09.2025. It is submitted that her number is always blocked and she is not able to reach the father. It is submitted that the earlier arrangement that is made by this Court may continue and there shall be a direction to the Family Court to dispose of the G&WC.No.432/2022 within a period of six months.

13. Learned counsel appearing for the respondent/father submits that the father had made all his best efforts to see that the children spend good time with the mother. Though there are certain issues during the visitation, he always tries to pacify the same and try to create an environment where the mother is in a position to have the custody of the children and he convinced both the children. It is submitted by the counsel that the attitude on the part of the mother, where she is continuously absent for 4 days and her whereabouts are not known, further strengthens the apprehension of the father from the beginning that the children are not safe with her. That is the reason when this Court is passing the order for overnight custody, the father has insisted that the caretaker of the - 15 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR children shall be present in the mother’s house so that the children are secured and their safety is taken care of. It is submitted that the Family Court considering all these aspects had rightly continued the interim custody with the father. Being with the mother overnight or having any temporary custody with the mother is not in the interest of the children. It is submitted that when this matter is pending before this Court and basing on the orders passed by this Court when the mother is exercising the visitation she had given a complaint to the Ashok Nagar Police Station that the father had kidnapped the children and PCR is filed and she has sent the copy of the PCR by way of WhatsApp and the same is placed before the Court.

14. Having heard the learned counsels on either side, perused the entire material on record. Learned counsel for the mother has submitted that there shall be a direction to the Family Court to dispose of the G&WC case. This G&WC is filed in the year 2024 and there are much older matters that are pending before the Family Court and this Court is not giving any direction to the Family Court to dispose of any matter which is filed after 2019. In that view of the matter, this Court - 16 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR cannot direct the Family Court to dispose of the matter out of turn. Whenever an application is filed seeking custody/interim custody of the children, the Court is always concerned about the well being of the children, as that would be the paramount consideration of the Court. When this matter came up before this Court, considering the way the mother has left the elder child earlier and later giving custody of the younger one also to the father, balancing the interest of the parents as well as the children and taking the welfare of the children consideration, this Court several times interacted with both the father and mother and the children which is evident from series of orders passed by this Court. This Court made all the efforts to see that the mother will be able to have the overnight custody of the children and also children will not be deprived of the love and affection of the mother. When this Court has initially interacted with the children, the children were not at all interested to go to the mother. Slowly, with the orders that are passed and also with the active cooperation of the father, they started going to the mother and the visitation that started between 12:00 p.m. to 4:00 p.m., later this Court has extended it overnight and also had passed orders that the - 17 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR mother should be the part of all the activities of the children. Though an apprehension is raised about the security of the children, this Court has brushed it aside and also observed that mother also has a responsibility and she will take care and the caretaker's presence along with the children would serve the purpose. But this conduct of the mother, who just like that, disappeared from 30.08.2025 to 04.09.2025 shows that there is absolutely no change in the behaviour of the mother and this unpredictable behaviour of the mother is definitely not in the interest of the children and the children cannot be left with the mother in this manner. In view of these circumstances, when the mother has not mend her ways, in spite of giving an opportunity, this Court is of the view that leaving the children overnight or leaving the children with the mother unsupervised is not in the interest of the children. However, considering the fact that completely she cannot be kept away from the children and considering all the aspects and in the light of the above discussion, this Court is passing the following order: ORDER i. The respondent/father shall continue to have the interim custody of both the children. - 18 - NC: 2025:KHC:37427 WP No. 2921 of 2025 HC-KAR ii. The petitioner/mother can exercise the visitation on every Saturday, between 12:00 p.m. to 4:00 p.m. at Cubbon Park. iii. At the time of exercising the visitation, either the father or the care taker of the children shall be present with the children. iv. Accordingly, the writ petition is disposed of. v. All I.As. in this petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 2 Sl No.: 6