Writ Petition No. 33075 of 2024 · The High Court
Case Details
- 1 - NC: 2025:KHC:9877 WP No. 33075 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO.33075 OF 2024 (GM-FC) BETWEEN: PAVAN PADEKAL S/O.ISHWARA BHAT P. AGED ABOUT 38 YEARS R/AT "KSHITHIJA" 4-44/46 PRASHANTH BAGH ALAPE PADIL MANGALURU-575 007 (BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL FOR SRI JOSEPH ANTHONY, ADVOCATE) AND: …PETITIONER DR.NIVEDITHA T.G. D/O.LATE T.G.BHAT AGED ABOUT 37 YEARS R/AT DOOR NO.3-238-2 "CHIRANTHANA" SANTHOSH NAGAR KUTHAR PADAV MUNNUR VILLAGE MANGALURU TALUK-575 017 …RESPONDENT (BY SRI UDAYA HOLLA, SENIOR COUNSEL FOR SRI K.CHANDRANATH ARIGA,ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 15.11.2024 PASSED ON IA.NO.XXXIX IN G & WC.NO.2/2022 BY THE PRINCIPAL Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: High Court of Karnataka - 2 - NC: 2025:KHC:9877 WP No. 33075 of 2024 FAMILY, MANGALURU. FAMILY COURT, DAKSHINA KANNADA, THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR ORAL ORDER This petition is filed by the petitioner-father of the minor children namely, Naisha Padekal and Nainika Padekal. 2. The petitioner-father had instituted a petition in G & WC.No.2/2022 before the Family Court at Mangaluru seeking custody and visitation rights of the minor children. 3. During the pendency of petition, the petitioner has filed an application in IA.No.XX seeking interim custody of the minor children for 30 days. However, the Family Court rejected the same. Aggrieved by which, the petitioner approached the Coordinate Bench of this Court, wherein the Coordinate Bench of this Court vide order dated 12.03.2024 permitted the father to pick up the children - 3 - NC: 2025:KHC:9877 WP No. 33075 of 2024 from the school on every Saturday 2.00 p.m. and to drop back the children on Sunday to the residence of the mother and also ordered that the mother is at liberty to talk to the children, while children are in custody of the father. It is also held that this arrangement is valid till disposal of the petition or till any modification is sought and parties are reserved liberty to file appropriate application for modification. 4. When such being the case, the petitioner has filed an application in IA.No.XXXIX before the Family Court seeking modification of the said order dated 12.03.2024
Legal Reasoning
passed by this Court in granting an extra day i.e. on Friday instead of picking up the minor children on Saturday afternoon and drop back the children on Sunday. The said application was seriously contested and on considering the submissions of both parties, the learned Judge of the Family Court not being satisfied with the request made by the father, rejected the application, considering the fact - 4 - NC: 2025:KHC:9877 WP No. 33075 of 2024 that the main custody petition itself was at the fag end, as the matter had reached the stage of arguments. 5. Sri Dhyan Chinnappa, learned Senior Counsel appearing on behalf of Sri Joseph Anthony for petitioner- father contends that he is only seeking an additional one day i.e. picking up the children on Friday and drop back the children on Sunday evening. It is his contention that no hardship or inconvenience would be caused to the mother or children as the children are happy in the custody of the father and there are no adverse remarks against the father with regard to the father taking care of the children, welfare and wellbeing of the children while they are in the custody of the father. Therefore, he requests for an additional day of visitation rights. 6. Per contra, Sri Udaya Holla, learned Senior Counsel appearing on behalf of Sri K.Chandranath Ariga for respondent-mother vehemently contends that upon consideration of all aspects and pros and cons of the welfare and wellbeing of the minor children, in the - 5 - NC: 2025:KHC:9877 WP No. 33075 of 2024 previous round of litigation, the Coordinate Bench of this Court, on hearing the submissions of learned counsels for parties granted the visitation rights to the father to have the custody and visitation rights from Saturday till Sunday evening. This arrangement was made till disposal of the main petition and of course, liberty was reserved to seek for modification. 6.1 It is also contended by learned Senior Counsel that the proceedings in the custody petition is at the stage of addressing arguments, wherein learned counsel for father before the Family Court has almost completed the main arguments in the petition and learned counsel for mother is yet to address the arguments and the same would not take much time, which would get over in one or two hearings. Therefore, it is contended that at this stage, if any order is to be passed by this Court modifying the order dated 12.03.2024 passed by the Coordinate Bench of this Court, the same would certainly have an impact in - 6 - NC: 2025:KHC:9877 WP No. 33075 of 2024 the mind of the learned Judge of the Family Court in deciding the petition. 6.2 It is also contended by learned Senior Counsel that the exams of the minor children are beginning from 12.03.2025 and it would not be appropriate at this stage to disturb the young children by shifting their residence very often, which would hamper their course of study and concentration to write the examination as they are at very young and tender age. On these grounds, he seeks dismissal of the petition. 7. Having heard learned Senior Counsels on behalf of the petitioner-father and respondent-mother, the point for consideration in this case is that - "Whether the visitation rights ordered by the Coordinate Bench of this Court on 12.03.2024, which has been diligently followed and not violated by either of the parties requires to be modified at this stage, when the main petition before the Family Court itself is in the verge of conclusion?" - 7 - NC: 2025:KHC:9877 WP No. 33075 of 2024 8. The answer to the point would be an emphatic no for the reason that the children are aged 08 years and 05 years studying in II standard and UKG respectively. Admittedly, they are in care and custody of the mother since at the time of filing of the petition before the Family Court in the year 2022 and the father has been provided custody and visitation rights during the weekend which he has been exercising without any breach. This Court does not want to delve into the matter as to whether the father is the better person or the mother is the better person at this stage, as it may hamper the rights of the parties in the proceedings before the Family Court, which is at the fag end and would be decided probably within a period of two weeks. The parties are in the course of addressing final arguments in the proceedings before the Family Court. However, the question of modifying the interim order would arise only if there is a scope for providing it due to any new and changed circumstances or there is large gap between the order passed earlier by this Court - 8 - NC: 2025:KHC:9877 WP No. 33075 of 2024 and the final order that would be passed in the petition by the Family Court. 9. In the present facts and circumstances, admittedly, the evidence is concluded before the Family Court; the petitioner-father has almost completed the arguments; the respondent-mother's side has to begin the arguments; the children are already meeting the father during weekends; the exams are scheduled to commence from 12.03.2025. However, at this stage, interfering with the existing order would create more hardship to the minor children, which is the primary concern and the requirement of the Court while considering the petition for custody and visitation rights rather than the rights of the parents. 10. Under the circumstances, without adverting to merits of the matter and the rights of the parties with regard to who is the better parent and with whom the minor children are happy, this Court is of the opinion that the Family Court be directed to dispose off the matter - 9 - NC: 2025:KHC:9877 WP No. 33075 of 2024 expeditiously within a period of one month from today. Accordingly, I pass the following: i) ii)
Decision
ORDER This petition is disposed off; The Principal Judge, Family Court, D.K., Mangaluru is directed to dispose of the main petition in G & WC.No.2/2022 expeditiously not later than one month, as the matter has reached stage of arguments of the respondent's side; iii) It is made clear that this Court has not expressed any opinion on the merits of the matter so also the rights of the parties and that of the minor children; iv) All contentions of both parties are kept open to be addressed before the Family Court at Mangaluru; v) Ordered accordingly. Sd/- (PRADEEP SINGH YERUR) JUDGE LB List No.: 1 Sl No.: 57