Husband’s petition to present CCTV evidence and prove children unsafe with mother, rejected by court !!

Mohammed Zakir vs Smt. Shabana on 15 March, 2017

Mohammed Zakir vs Smt. Shabana on 15 March, 2017
Karnataka High Court

Mohammed Zakir vs Smt. Shabana on 15 March, 2017

Author: A.S.Bopanna

                         1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 15TH DAY OF MARCH, 2017

                       BEFORE

   THE HON'BLE MR. JUSTICE A S BOPANNA

     WRIT PETITION No.44349/2016 (GM-FC)

BETWEEN:

MOHAMMED ZAKIR
S/O SHAKEEL AHAMED
AGED ABOUT 34 YEARS
NO. 23/B, 10TH CROSS,
KUPPASWAMY LAYOUT,
ARABIC COLLEGE POST,
NAGAWARA, BANGALORE-45
… PETITIONER

(BY SRI. TAJUDDIN, ADV.)

AND:

  1. SMT. SHABANA
    EX. W/O MOHAMMED ZAKIR
    D/O MOHAMMED YUNUS
    AGED ABOTU 31 YEARS
    R/O NO 20, 20TH MAIN,
    RAMASWAMY LAYOUT,
    J P NAGAR, BANGALORE-78
  2. MASTER. MOHAMMED ZIHAAN
    AGE ABOUT 9 YEARS
    S/O MOHAMMED ZAKIR
    R/O NO.20, 20TH MAIN
    RAMASWAMY LAYOUT, J.P.NAGAR
    BANGALORE-78

  3. MISS. SUHANA SAIFI
    D/O MOHAMMED ZAKIR
    R/O NO. 20, 20TH MAIN
    RAMASWAMY LAYOUT, J.P. NAGAR
    BANGALORE-78
    2

    RESPONDENTS 2 & 3 ARE MINORS SINCE
    REP. BY THEIR MOTHER SMT. SHABANA
    1ST RESPONDENT
    … RESPONDENTS
    (BY SRI. KESHAVA KUMAR B, ADV.)

    THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
    THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR
    THE RECORDS AND PROCEEDINGS IN THE CASE OF THE
    PETITIONER; DIRECT TO THE VI ADDL. FAMILY COURT
    BANGALORE, TO QUASH THE ANNEXURE-V ORDER
    DTD:8.7.2016 IN G & WC NO.8/2015 IN THE COURT OF VI ADDL,
    CIVIL JUDGE FAMILY COURT BANGALORE REJECTING IA
    UNDER SECTION 151 CPC AND ETC.

    THIS PETITION COMING ON FOR PRELIMINARY
    HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE
    FOLLOWING:

                   ORDER
    

    The petitioner is before this Court assailing the order dated 08.07.2016 passed in G & WC No.8/2015 whereby the application filed by the petitioner seeking to produce additional material before the Court below is rejected. The petitioner is also seeking issue of direction to the Court below to dispose of G & WC No.8/2015 expeditiously.

  4. The petitioner herein is the husband of the first respondent and the father of respondents No.2 and 3. Due to certain disputes in their married life, they are residing separately. Among the other litigations pending between the parties, the petitioner herein has also instituted a petition under the provisions of the Guardians and Wards Act which is registered in G & WC No.8/2015. In the pending proceedings, the petitioner herein has filed an application seeking leave of the Court to produce the CCTV footage and other material where the petitioner is said to have recorded certain incidents which have taken place between the parties so as to put forth the case of the petitioner to seek custody of the children by pointing out that the children are not safe in the custody of the first respondent.

  5. The application was opposed by the first respondent. The Court below by the order impugned dated 08.07.2016 has rejected the application.

  6. Heard the learned counsel appearing for the parties and perused the petition papers. At the outset, a perusal of the order impugned would disclose that the Court below has referred to the reasons for which such request had been made in the application and in that regard has arrived at the conclusion that the CC TV footage which is now sought to be produced by the petitioner in any event would not be relevant for the purpose of deciding the custody of the children though that may be an issue linked to the matrimonial case.

  7. Learned counsel for the petitioner would however contend that the CCTV recording was also necessary herein to point out that the children would be safe in the custody of the petitioner but not in the custody of the first respondent as her brothers are involved in criminal activities which is sought to be demonstrated through the CCTV footage.

  8. Having considered these aspects of the matter, I am of the opinion that the said aspect would not be relevant in the present circumstance. The guidelines are well laid down while considering grant of custody or otherwise of the children to the guardian to be appointed by the Court. Respondent No.1 in any event is the mother of respondents No.2 and 3 and as such in that background the consideration as to whether the custody is to be granted to the petitioner is to be made by the Court below based on the evidence that would be available on record and a CCTV footage of the present nature in any event would not clinch the issue. In any event, if the petitioner has other material with regard to such instances and the petitioner is referring to the statement that has been recorded in Crl.Misc.No.233/2013 relating to the said incident, certainly the petitioner would be entitled to call for such records or produce the same, but the request as made in the present application would not be justified. Therefore the Court below has not committed any error in that regard so as to call for interference.

  9. Insofar as the prayer made by the petitioner to direct the Court below to dispose of the matter expeditiously, it is needless to mention that every matter before the Court would have to be disposed of in an expeditious manner, but subject to the other limitations and impediments as also the Board of the Court. Therefore, a direction without reference to the nature of litigations pending before the Court below, the reason for which the present matter is being adjourned and the convenience of the Court would not be justified at this juncture. Therefore all that is necessary to be observed is that the petitioner would make a request before the Court below itself seeking early disposal of the petition. Depending on the circumstances as stated herein, the Court below itself will take a decision with regard to the matter and consider the same in accordance with law.

In terms of the above, the petition stands disposed of.

Sd/-

JUDGE akc/bms

https://indiankanoon.org/doc/161216232/

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