Father Attempting To Visit Daughter Does Not Tantamount To House Trespass If Mother Refuses To Comply With Visitation Rights: Karnataka HC

The Karnataka High Court has quashed a case of criminal intimidation and trespass initiated by a woman against her former husband who visited her house to meet their daughter as per the visitation rights granted to him by the competent court.

A single judge bench of Justice M Nagaprasanna allowed a plea under Section 482 of the CrPC by the petitioner who was charged under sections 504, 506 and 448 of the Indian Penal Code.

It was submitted that the term of compromise for divorce by mutual consent between the parties was that the parties would agree with the right of the husband to visit the daughter every Saturday from 3 p.m. to 5 p.m. either at the residence of the wife or at a neutral place like the activity zone, or mall etc.

The complainant alleged that on 19-08-2022, the wife communicated a mail to the husband rescheduling the visitation for 20-08-2022 to 27-08-2022.

It was submitted that despite rescheduling the petitioner entered the wife's building on 20-08-2022 and despite being denied permission thrice, he tried to get in to meet his daughter when the wife was not at home. 

It was argued that such an attempt to meet the daughter forcefully led the complainant to register a complaint before the jurisdictional police.

The petitioner argued he had visitation rights, and the visitation was set to happen on 20-08-2022, which was rescheduled by the wife, but not acceded to by him.

During the regular visitation hours, the petitioner submitted that he wanted to visit the daughter but was not let in and therefore had to forcibly get into the apartment complex and not the house and interact with the daughter.

The complainant opposed the plea arguing that despite the rescheduling of visitation, the husband visited the daughter without any notice.

It was argued that a child of the child of 8-years went into trauma, and locked herself in the bathroom for two hours. 

The wife contended that the act of the husband amounted to criminal trespass under Section 448 of the IPC and criminal intimidation under Sections 504 and 506 of the IPC. 

The bench noted that the visitation was scheduled to happen on 20-08-2022 and on 19-08-2022 the wife sent a mail rescheduling the visitation to 27-08-2022, the next Saturday. Therefore, it was found that the wife took away the right of visitation on 20-08-2022, and that the husband had submitted that on several such occasions, the visitation had been breached by the wife.

Then it observed “A complaint came to be registered after about 15 days of the incident i.e., on 07-09-2022 alleging that 08 year old daughter went into a trauma on suddenly seeing the petitioner, rushed into the bathroom and locked herself for two hours. A typical story is twined by the wife as she had communicated that on 20-08-2022 she could not permit visitation to the husband; it is rescheduled to 27-08-2022. The husband appears to have replied to the mail as 'noted'. After 15 days when the crime comes to be registered, the Police have not even looked into what is the issue between the two and have straight away registered the crime. The wife, therefore, on this triviality has sought to set the criminal law into motion for an offence under Section 448 of the IPC.”

Noting that Section 448 of the IPC deals with punishment for house trespass, the court held that whoever enters into or upon property in the possession of another with an intention to commit an offence is said to be committing criminal trespass and that in the present scenario, the ingredients of the offence cannot be applied. 

It was found that the husband had a valid visitation right on the day that he wanted to visit the daughter, by an order of the competent Court.

The court noted that the fact that the father had lost the opportunity to meet his daughter on the 20th had compelled him to enter a garbage van and meet the daughter posing as someone who would enter the house to lift the garbage. It held:

"This is the anxiety of the father to meet the daughter. This is dubbed by the wife to be a criminal trespass into the house with a criminal intent to intimidate the daughter. Therefore, all the offences are loosely laid against the petitioner. If any further investigation is permitted to continue, it would become, on the face of it, an abuse of the process of law and misuse of the provisions of law by the wife against the husband to settle her scores.”

Accordingly, the plea was allowed and the court quashed all criminal proceedings against the petitioner. 

Appearance: Advocate Pallava R for Petitioner.

HCGP K.P.Yashodha for R1

Advocate Rosa Paramel for R2.

Citation No: 2023 LiveLaw (Kar) 497

Case Title: Anupam Singh Tomar AND State By Kothanur Police & Another

Case No: Criminal Petition No 9997 OF 2022

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