Full Judgment
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2024 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA WRIT PETITION HABEAS CORPUS NO. 14 OF 2024 BETWEEN: CHRIS PRIDE LOGO S/O. LATE RICHARD ALBERT LOBO AGED ABOUT 38 YEARS, RESIDENT OF: HAUPTSTRASSE 112, 69469 WEINHEIM, GERMANY, PRESENTLY AT BANGALORE. …PETITIONER (BY SMT. JAYNA KOTHARI, SR. COUNSEL FOR SRI. ROHAN KOTHARI,ADVOCATE) Digitally AND: signed by SUMA B N
Location: 1. STATE OF KARNATAKA High Court of REP. BY ITS CHIEF SECRETARY, Karnataka DEPARTMENT OF HOME AFFAIRS,VIDHANA SOUDHA, BANGALORE-560001.
2. COMMISSIONER OF POLICE, BANGALORE CITY, OFFICE OF THE COMMISSIONER OF POLICE, INFANTRY ROAD, VASANTH NAGAR BANGALORE-560 001. -2-
3. THE SUB-INSPECTOR OF POLICE KOTHANNUR POLICE STATION NEW AIRPORT ROAD, GEDDALAHALLI, RAMMANA LAYOUT, NARAYANAPURA, BANGALORE-560077.
4. MRS. BENEETA GEORGE W/O CHRIS PRIDE LOBO AGED ABOUT 36 YEARS, R/AT NO. 87, EBENEZER, 2ND CROSS, BDS NAGAR, K NARAYANAPURA, BANGALORE-560077. …RESPONDENTS (BY SRI. M.V. ANOOP KUMAR, HCGP FOR R1-R3; SRI. VIVEK SUBBAREDDY, SR. COUNSEL FOR SRI. K.N. SUBBA REDDY, ADVOCATE FOR R4) THIS WRIT PETITION HABEAS CORPUS IS FILED UNDER
ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE AN APPROPRIATE WRIT, ORDER OR DIRECTION IN THE NATURE OF HABEAS CORPUS TO THE R1 TO R3 IMMEDIATELY LOCATE THE WHEREABOUTS OF THE PETITIONER MINOR DAUGHTER, MS. LIANA HAZEL LOBO AND PRODUCE HER BEFORE THIS HONBLE COURT AND DELIVER HER CUSTODY TO THE PETITIONER SO THAT HE MAY RETURN WITH HER TO GERMANY. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, K.SOMASHEKAR,J., MADE THE FOLLOWING: -3-
ORDER
Learned Senior Counsel namely Smt.Jayna Kothari for petitioner is present before the Court physically, whereby the petitioner has secured the services of the learned Senior Counsel, even though engaged the services of the counsel Sri.Rohan Kothari who is on record.
2. In this matter learned Senior Counsel namely
Sri.Vivek Subba Reddy for respondent No.4 is present before the Court physically. In this matter, the learned Senior Counsel for the petitioner had referred the previous order sheet dated 03.04.2024, wherein in that order sheet it is indicated that Sri.Shiv Kumar, learned Senior Counsel as well as mediator is suggested by the parties as the mediator in the case and it is convenient for the said mediator. The mediation shall be carried out at the earliest at the premises which is convenient to the said mediator and the parties. These are all the things which is brought to the notice by the learned Senior Counsel for the petitioner and it is in the presence of learned Senior Counsel for respondent No.4.
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3. However, the learned Senior Counsel for the petitioner has filed an affidavit in detail. This supplementary
affidavit consisting of paragraph Nos.1 to 3. The learned Senior Counsel by referring to clause (g) submitted that this unilateral act of restricting access took place when parties were in the midst of court-directed mediation. Despite the petitioner making every effort to undertake mediation in good-faith, the respondent's actions have resulted in the mediation failing. It is a matter of record that during the mediation exercise, parties had been requested to place on record proposals for shared parenting that they had in mind. The petitioner, having complete faith in the mediation process and seeking to genuinely arrive at an amicable resolution, placed on record a detailed proposal for shared parenting. The respondent No.4 on the other hand, refused to submit any proposal and hence the mediation failed.
This clause (g) has been emphatically submitted by the learned Senior Counsel for the petitioner, even has not allowed the Senior Counsel for respondent No.4 for response to this affidavit. But the Senior Counsel for the petitioner emphatically and also forcefully submitted that, she is ready to address the -5-
argument whether the writ petition initiated by the petitioner against the respondent who is party to the proceedings inclusive of respondent No. 4 is maintainable or not. But, it is a question before us to decide the issue relating to the child's right. The child is aged about two and half years. The female child is under the care and custody of respondent No.4 who is no other than the mother, but there is a dispute emerged in between the petitioner and the respondent No.4. They are the spouses and this status which is indicating in this matter. However, keeping in view the status in this matter as well as keeping in view the submission made by the learned Senior Counsel for the petitioner and so also the submission made by the learned Senior Counsel for respondent No.4 are concerned, it is deem it appropriate that even though the child's right has to be protected under the relevant provision of Guardians and Wards Act, 1890. Keeping in view Sections 5 and 6 of the aforesaid enactments are concerned, it is deem it appropriate that even though the child's rights are required to be protected, keeping in view the aforesaid laws are concerned, Article 226 of the Constitution of India relating to initiation of this writ
-6- petition against the respondent being the authorities inclusive of respondent No.4 do not survive for consideration. In the meanwhile, the learned Senior Counsel for the
petitioner submitted that it is in terms of Habeas Corpus in nature, but the Latin term of Habeas Corpus in nature it is indicating that whether the person is alive or not and the child's right is involved in the special enactment of Guardian and Wards Act, 1890. Let the Senior Counsel has to approach the proper forum seeking the relief. However, keeping in view Article 21 of the Constitution of India relating to personal life and liberty, it is applicable to both the parties to the proceedings. Accordingly, made an observation.
Accordingly, the writ petition is hereby disposed of, even on merits also. In the meanwhile, learned Senior Counsel for the petitioner submitted that even though reply has to be filed by the learned senior counsel for respondent No.4, this kind of submission made by learned senior counsel after completion of dictation, it is keeping in view the submission made by the learned counsel for the parties, even that submission made by -7- the learned Senior Counsel is hereby placed on record, accordingly made an observation. Sd/- JUDGE Sd/- JUDGE AP CT:TSM List No.: 1 Sl No.: 5