The Karnataka High Court has observed that sufficient visitation rights should be given to a parent who does not have the child’s custody, which is essential to maintain a child’s social, physical, and psychological contact with the parent. Accordingly, the bench directed the mother to grant the custody of the child to the father for the vacations, as per the compromise arrived at earlier.

“It is well settled in law that the concept of guardianship of a ward is essentially different from custody of the ward. The Court has to ensure that sufficient visitation rights to a parent who is not given child's custody should be granted so that the child may not loose social, physical and psychological contact with the parent. The parent who is denied the custody of the child should have access to the child specially when both parents live in same city”, a bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde observed in the matter.

The bench further opined, “The parents are under an obligation to provide for an environment which is reasonably conducive to the development of the child. It is in the best interest of the child to have parental care of both the parents if not joint then at least separate. In the instant case, parties have arrived at a settlement with regard to guardianship and custody of the son. We, therefore, see no reason as to why respondent No.4 (wife) should be permitted to flout the terms and conditions of the compromise arrived at between the parties, that too without any justification”.

Advocate K.B.Monesh Kumar appeared for the petitioner-father of the child, and Advocate R.A.Devanand appeared for the respondent no. 4-mother of the child.

The present petition was filed seeking a writ of Habeas Corpus to produce the minor son of the parties namely Kautik Iyer Yatnalli before the Court.

In the pertinent matter, the petitioner-husband, and the respondent no.4 –wife, got married on February 28, 2011, where the child from the wedlock was born on December 10, 2023. However, due to the matrimonial disputes, could not stay together beyond 2014.

Pursuant to which the respondent no. 4 initiated a proceeding under Section 125 of the Criminal Procedure Code, 1973 seeking maintenance for herself and the son. In the revision petition before the Court, the petitioner as well as respondent No.4 arrived at an amicable settlement.

Under the compromise arrived at, respondent was appointed as guardian of the son whereas petitioner was granted visitation rights during weekends as well as custody of child during Summer and Winter Vacations. Accordingly, in December 2022, the custody of son was handed over to the petitioner and the where he spent approximately 12 days with him.

However, as per the averments of the petitioner, he was subsequently denied access to the son. Further on sending e-mails, no response was received by him.

The respondent-4 vehemently argued inter alia that:

-the petitioner is alone and would not be able to pay attention to the son who is a patient of epilepsy;

-the instant case is not a case of illegal detention as the son is in the custody of the mother and in case the terms and conditions of the compromise arrived at between the parties have been breached, the petitioner is at liberty to initiate the proceedings for contempt of this Court;

- only in case of an infant, a writ of Habeas Corpus is maintainable in case the child is in illegal custody.

The Court while placing reliance on Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67, observed, “it is axiomatic that in case the child is in custody of one of the parent, writ of Habeas Corpus is maintainable”.

The bench therefore, after considering the submissions, statements that the child made in the Judge’s chamber and the doctor’s report on the child’s epilepsy condition, passed certain directions that:

-the wife to handover the custody of the son to the petitioner the same day, where the petitioner shall be entitled to the custody of the son till June 4, 2023;

-the petitioner shall be on leave and shall spend the whole time with the son from the time of handing over of the custody till June 4, 2023;

-petitioner will make sure that his mother and his sister also stay with him during the period;

-he shall take care of his son and shall attend to his medical needs;

-respondent no. 4 was allowed to make a video call daily to the son between the period from 6 p.m. to 7 p.m.

Cause Title: XYZ v. The State of Karnataka & Anr.

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Justice Alok AradheJustice Anant Ramanath Hegde

Agatha Shukla