In W.P.H.C. No.30 of 2023-KAR HC- Writ of habeas corpus is maintainable when child is in custody of one of the parents: Karnataka HC asks woman’s employer to hold back benefits payable to her till custody of her 8-yr-old daughter is handed over to father
Justices Alok Aradhe & Anant Ramanath Hegde [07-06-2023]

Read Order: DR. RAJEEV GIRI v. STATE OF KARNATAKA 

Tulip Kanth

Bengaluru, June 8, 2023:  In a child custody matter where the mother didn’t handover the custody of her 8-yr-old daughter to the father even though  several directions were issued to secure the presence of the minor child, the Karnataka High Court has allowed the father’s petition while also directing the mother's employer to hold back all the benefits payable to her till custody of the daughter is handed over.

Considering the fact that several directions were issued to secure the presence of the minor child and the court also directed initiation of civil and criminal contempt proceeding against the wife, the Division Bench of Justice Alok Aradhe & Justice Anant Ramanath Hegde held, “The aforesaid conduct of the wife amounts to abuse of process of law and cannot be countenanced.”

The facts of this case were such that the petitioner and third respondent-wife got married in the year 2011 and daughter was born to them. The petitioner-father filed a petition under Section 25 of the Guardians and Wards Act, 1890 which was allowed by the Family Court. The respondent-mother was directed to handover the custody of the minor child Mayra Giri to the custody of the petitioner within one month.

When this order was challenged by the wife in an appeal under Section 47(c), the judgment of the family court was upheld. Her SLP had also been dismissed by the Top Court.

It was an admitted fact that the order appointing the husband as guardian of the minor daughter and a direction to the wife to hand over the custody to the husband had attained finality.However, the custody of the daughter had not been handed over to the petitioner. Thereupon, the petitioner approached the High Court with the  writ petition seeking issuance of a writ of Habeas Corpus by directing the police to trace and produce the petitioner's minor daughter. A Division Bench had also passed an interim order directing issuance of Non Bailable Warrant to secure the presence of the wife. 

With regard to the issue of the maintainability of the petition, the Bench referred to the judgments in Tejaswini Gaud V. Shekhar Jagdish Prasad Tewari and Yashita Sahu V. The State Of Rajasthan and said, “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. Therefore, the contention urged on behalf of the wife that the writ of habeas corpus is not maintainable does not deserve acceptance. Accordingly, it is repelled.”

The Bench was of the opinion that the wife was continuing with the custody of the daughter, which was not permissible on account of judgment which upheld the decision of the Family Court. 

It was also noticed that the  division bench in this writ petition had directed issuance of Non Bailable Warrant, which was challenged in SLP. The Top Court had recorded undertaking furnished on behalf of the wife that she would remain present before this court along with the daughter. Thereafter, another division bench of this court held that the wife was trying to evade the process of the court and her action amounts to abuse of judicial process.

The Bench, thus, concluded the matter by stating that the wife couldn’t be permitted to continue with the custody of the daughter as the same was in contravention of judgments of the court, which had attained finality and was binding on the parties.

The Bench directed the Bangalore Commissioner of Police to ensure that the concerned Station House Officer hands over the custody of the daughter to the petitioner within 24 hours from the date of receipt of a copy of the order.