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Posts Tagged ‘Child Custody’

Karnataka HC:- Share Parenting Judgment.

September 28, 2013 Leave a comment

Shared Parenting Judgement by the Hon’ble Karnataka High Court. http://on.fb.me/15AjnAl

 

Case Number:  MFA 1729/2011
Judge(s):  N.K.PATIL AND B.MANOHAR
Petitioners:  K M VINAYA
Respondents:  B R SRINIVAS
http://bit.ly/15Ajtb6

Supreme Court: Grand Parents are entitled for Visitation Rights.

January 23, 2013 Leave a comment

Supreme Court of India

I.S.Sirohi
vs
Commr.Of Police & Ors.
on 27 August, 2008
Author: ………………..J.
Bench: Altamas Kabir, Markandey Katju

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1361 OF 2008

[Arising out of SLP(Crl.)No.5919 of 2007]

I.S.SIROHI ..Petitioner(s)

VERSUS

COMMR.OF POLICE & ORS. ..Respondent(s) ORDER

 

1. Leave granted.

2. This appeal arises out of the judgment and order dated 18th September, 2007 passed by the Delhi High Court in Writ Petition(Crl.)No.1225 of 2007 filed by Shri I.S. Sirohi, the appellant herein, who is the father-in-law of Mrs. Deepti Sirohi, the respondent No.4 herein. The writ petition was disposed of by the High Court on 18/09/2007 by a non-speaking order, which reads as follows:- "In the circumstances of the case we feel that such a writ petition does not lie.

Dismissed."

2

3. Having regard to the nature of the order passed, notice was issued in the special leave petition on 12th October, 2007, and subsequently, on 7th December, 2007, after service of notice when the matter was listed, the parties were referred to mediation before the Delhi High Court Mediation Centre and the matter was directed to be listed once a report was received in respect of such mediation.

4. When the matter was listed on 25th February, 2008, it was directed to be put up for final disposal, and accordingly, the same was listed before us on 26th August, 2008. After hearing the counsel for the respective parties, we had directed the matter to appear today in Chambers, when the respondent No.4-wife was directed to produce the two children who were the subject matter of the reliefs prayed for in the writ petition. She was also directed to be personally present, and a similar direction was given with regard to the paternal grandfather.

5. Today, when the matter was taken up, we had occasion to speak to the respondent-wife, the two children, Ruchira, aged approximately 10 years, and Rajat, aged 7 years, the parents-in-law of the respondent 4-wife and their respective counsel.

6. Since we were considering the writ petition wherein a writ in the nature of habeas corpus, as far as the two children are concerned, had been prayed for and which had been dismissed by a one sentence order of the High Court, we were of the view that since the children have been separated from the paternal 3

grand-parents as well as their father for almost two years, it would be in the best interest of all concerned, and especially the children, to pass appropriate interim orders to enable the paternal grand-parents of the children, as well as the husband of the respondent No.4, to have access to the children. We are fully alive to the fact that this is not a custody proceeding, but, in the facts and circumstances of the case, we are of the view that the children should also not be alienated from the company and affection of their father or paternal grand-parents. In our view, the children require the care, love and affection, both of the father’s side of the family, as well as that of the mother, and that none of them should be denied access to the children. Accordingly, after having spoken to the children and the parties, as also their learned counsel and keeping in mind the interest of the children, we pass the following interim order:

(1)The paternal grand-parents of the children will be entitled to meet the children at the house of the respondent No.4-wife every alternate week-end, preferably on Sunday, between 9.00 A.M. and 1.00 P.M. in the presence of a member of the family of the respondent No.4-wife or a mutual friend. During such visit, the grand-parents of the children shall not be allowed to take the children out of the house of the respondent No.4-wife. However, 4

during holidays consisting of four or more consecutive holidays, the appellant before us will be at liberty to keep the children with him at least for two days during the said period. The respondent No.4- wife shall arrange to drop the children to the house of the appellant for the said purpose, and to take back the children to her custody at a day and time to be mutually fixed;

(2)Although, Dr. Niren Sirohi, the father of the children and the husband of the respondent No.4 is not a party before us, since the writ petition for a writ in the nature of habeas corpus has been filed by his father, seemingly on his behalf also, we further direct that he too will be entitled to visit the children as and when he visits India, upon prior notice to the respondent No.4-wife, who shall thereupon give proper access to him to meet the children either in her presence or in the presence of some other family member of the respondent No.4-wife or a mutual friend, at a date and time to be mutually agreed upon. In case the children agree to go out with him for an outing, he will be at liberty to take them out, but shall return them to the custody of the respondent No.4-wife by 6.00 P.M. at her residence. Dr. Niren Sirohi will under no circumstances be entitled to remove the children from the custody 5

of the respondent No.4-wife, except in the manner aforesaid, or to take them out of India without applying to this Court for such permission. Ms. Asha Nair, learned advocate appearing for the State, shall give necessary instructions in this regard to all concerned authorities and provide them with a copy of this order to ensure that the same is strictly implemented. The learned counsel appearing on behalf of Dr. Niren Sirohi in the trial court, where the proceeding under Section 498A Cr.P.C. is pending, undertakes to obtain an affidavit from Dr. Niren Sirohi to that effect and to file the same in this Court within a month from date.

(3)The visitation rights being given to the paternal grand-parents and Dr. Niren Sirohi should not in any way cause any interference with the normal school routine of the children, who are attending school in Greater Kailash-II.

7. The affidavit to be affirmed by Dr. Niren Sirohi should contain an undertaking that he will not proceed any further with the civil and criminal cases pending in the U.S.A. during the pendency of this appeal before this Court and shall not under any circumstances remove the children from India or from the custody of the respondent No.4-wife, except in the manner and to the extent indicted in this order, until further orders of this Court. Similarly, the respondent 6

No.4-wife also undertakes not to proceed with the criminal and civil proceedings filed by her, which are pending here in India.

8. We also stay the criminal proceedings which are now pending before the learned Magistrate in Patiala House, New Delhi, though we have been informed by learned counsel appearing on behalf of the respondent No.4-wife that the complaint against the paternal grand-parents has since been withdrawn. We have been further informed that the proceedings before the Magistrate has been stayed by the High Court and such stay is operative till 1st September, 2008. By virtue of this order, the stay shall continue until further orders.

9. In addition to the above, it has been mentioned by Ms. Indu Malhotra, learned senior counsel appearing for the respondent No.4-wife, that her client and Dr. Niren Sirohi jointly own a house property in Lexington, Massachussets, U.S.A., and that attempts are being made by Dr. Sirohi to sell off the same. Though, not denied, the said submission made by Ms. Malhotra has been explained by

learned counsel appearing for Dr. Sirohi indicating that since expenses for maintaining such a big house consisting of nine rooms, was costing him about 4000/- dollars a month, he was being compelled to sell the same, and under the prevalent laws in the U.S.A., he would have to keep aside 50% of the said proceeds in a separate account in the name of the respondent No.4-wife. We can 7

see no ground to prevent the sale from being proceeded with and completed since it cannot prejudice the respondent No.4-wife, who will be entitled to receive 50% of the sale proceeds as her share of the property. We, accordingly, see no reason to interfere with the sale of the property and Dr. Sirohi may proceed with such sale, if he so wishes, subject to depositing 50% of the sale proceeds in the name of the respondent No.4-wife in a separate account to her credit.

10. Let this matter be listed on 26th November, 2008, for further directions, with liberty to the parties to mention for variation of this order or for other orders, even before the said date, in the event it becomes necessary to do so. ………………..J.

(ALTAMAS KABIR)

………………..J.

(MARKANDEY KATJU)

NEW DELHI;

AUGUST 27, 2008.

 

http://www.indiankanoon.org/doc/1979218/

Bombay HC:- Custody of minor child given to Father.

January 21, 2013 Leave a comment

Salient points

# Husband / father has retained custody of children though some of them are female children and ALL of them are minor

# Husband has been carefully escalating the matter thru various courts and finally won custody at Bombay HC too !!

# children are either neutral or silent

# Husband has appeared PARTY IN person and NOT by advocate even at the High court

 

================== judgement =================

 

Bombay HC judgment

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.353 OF 2008

Mrs.Mary Cedric Pinto .. Petitioner versus

Mr.Cedric Francis Pinto & Anr. .. Respondents

Mr.N.P.Deshpande for the petitioner.

None for the 1st respondent.

Ms.A.T.Jhaveri, A.P.P for the respondent No.2-State.

CORAM : A.S.OKA, J.

DATE ON WHICH JUDGMENT IS RESERVED : 2nd July 2009.

DATE ON WHICH JUDGMENT IS PRONOUNCED: 10th September 2009.

JUDGMENT:

1. On 2nd July 2009 the submissions of the learned counsel appearing for the petitioner were heard. The judgment was not delivered on that day as the learned counsel appearing for the 1st respondent was not present. The judgment was reserved. The judgment could not be pronounced earlier as the file of the petition was misplaced.

2. The petitioner is the wife and the 1st respondent is the husband. An application was made by the petitioner under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the said Act) before the learned Magistrate praying for various reliefs. The dispute relates to custody of three minor children. Interim relief was granted by the learned Magistrate by order dated 21st November 2007 in exercise of powers under section 23 of the said Act by directing that the 1st respondent shall hand over temporary custody of the three minor children to the petitioner. The directions were given to the 1st respondent to desist from causing domestic violance as mentioned in the report of the Protection Officer. Under the said order an arrangement was made enabling the three minor children to stay with the 1st respondent father from 8.00 a.m of every Saturday till 9.00 a.m on the immediately following Sunday. An appeal was preferred by the 1st respondent. By the impunged order dated 19th December 2007, the learned Additional Sessions Judge modified the order of the learned Magistrate and directed that the husband and wife will be entitled to retain the custody of the minor children every alternate month. The petitioner and 1st respondent were directed to take proper physical and mental care of the children whenever the children would remain in their custody.

3. When the writ petition came up before this Court for admission on 15th September 2008, the petition was ordered to be placed in chamber. On 19th September 2008 in chamber this Court interviewed the three minor children.

Thereafter, the matter appeared before the Court on 24th September 2008.

The paragraphs 2 to 4 of the order passed on that day read thus:

“2. It must be stated here that on Friday, 19th September 2008 at 5.30 p.m the children were called to my chamber alongwith the petitioner and the 1st respondent. I had no occasion to talk to the three children. To enable me to talk to the children, I requested the parties and the advocates to wait outside the chamber. While leaving the chamber, the learned advocate holding for the advocate for the petitioner requested the Court to ensure that a cellphone is not kept with the eldest child for recording the conversation in the chamber. The first respondent categorically stated that there is no basis for such apprehension.

 3. The children were at pains to tell me that they desire that the parents should come together and they will be very happy if they are in position to stay with both the parties. Therefore, in chamber, a suggestion was given to the parents to explore the possibility of reconciliation, keeping in mind the desire expressed by the three children. 

4. I gather from Shri Deshpande, learned advocate for the petitioner that as of today, there is no possibility of reconciliation between the petitioner and the 1st respondent. “

4. On 27th April 2009 when the petition was called out, none appeared for the 1st respondent. The advocate for the petitioner was present. He stated that no progress has been made in the matter of settlement. Therefore, the petition was ordered to be fixed for final disposal.

5. The petitioner and 1st respondent married on 18th October 1989 under the provisions of the Special Marriage Act. On 27th December 1991 they again got married in church. The couple was blessed with three children. The first two are the daughters and third one is the son. The present ages of the children appear to be 16 yrs, 14 yrs and 12 yrs respectively.

6. As stated earlier, temporary custody of the minor children was granted by the learned Magistrate in favour of the petitioner. The order of temporary custody was disturbed by the Sessions Court by passing a peculiar order. The petitioner-wife and the 1st respondent husband were permitted to retain custody every alternate month. It, however, appears that after the order of the Sessions Court, the custody of the children has remained with the 1st respondent father.

7. The learned counsel appearing for the petitioner submitted that there was no reason for the learned Additional Sessions Judge to disturb the order of temporary custody passed by the learned Magistrate. He submitted that the order of the learned Sessions Judge that custody of the children will be retained by the petitioner and 1st respondent every alternate month is perverse and is not in the interests of the minors. He submitted that out of the three minors two are daughters and the son is of tender age. He submitted that welfare of the minors require that their custody should be retained with the mother.

8. I have given careful consideration to the submissions. It is well settled law that while deciding an application for custody of minor children, the only paramount consideration is welfare of minor children and the legal rights of the parties or the parents are not relevant. The order of the learned Magistrate records that the minor children on their own sought audience of the learned Magistrate and in chamber when the learned Magistrate talked to the children, they expressed a desire to stay with the mother. Thereafter, the learned Magistrate passed an interim order directing that the custody of the minor children be handed over to the petitioner. However, he passed an order directing that at weekends the minor children will stay with the 1st respondent.

9. The learned Additional Sessions Judge has noted in the impugned order that he had taken interview of the minor children in his chamber and he had talked to the parties with a view to bring about settlement. He has recorded that the petitioner was not in a mood to even think of settlement.

10. In paragraph 4 of the impugned order, he has noted that both the mother and father were claiming custody. He noted that the children want both the parents to stay together and they need love and affection of both, the mother and the father. He noted that the children expressed their desire to celebrate Christmas and New Year in the company of their parents. The relevant part of the order passed by the learned Additional Sessions Judge reads thus: ” REASONS 6. The elder daughter Eleine is the studen of IX th standard. Cedrina and Edric are the students of Vth

 standard. Their welfare is of paramount consideration.
The children do not have any allegation against the
parents. Both the parties want to exercise their
parental authority to have custody of the children.
The children want both the parents and stay with them
together. They want ot celebrate Christmas and the New
Year in their company, which appear impossible,
because the respondent No.1 is not ready. It is in
this circumstances the appeal needs to be partly
allowed as the order passed by the learned Magistrate
needs some modification in the interest of the
children. Hence, the following order: ORDER

The appeal is partly allowed as under:-

1. The appellant shall give the custody of the three
children to the respondent No.1 today in the Court.

2. The respondent No.1 shall keep the children in
their custody till 19th January 2008. She shall give
the custody back to the appellant on 20th January 2008
at about 9 a.m in the office of Mahila Vikas Kendra
Pulgate, Pune and the appellant shall collect the
children therefrom.

3. Thereafter the appellant shall keep the children
in his custody till 19th February 2008 and he shall
deliver the custody of the children to the respondent
No.1 on 20th February 2008 at the same place and time
to enable the respondent No.1 to collect the children.

4. In this manner this cycle of one month shall go on
until further order.

5. The appellant and the respondent No.1 shall not
remove the children out of the municipal limits of the
Pune Cantonment and Pune Corporation without prior
permission of the learned Magistrate.”

11. It must be noted that even before this Court the three children were at pains to point out that they desire that their parents should stay together and they would be very happy if they get an opportunity to stay with both the parents. Therefore, on 19th September 2009 a suggestion was given by this Court to the parents to explore the possibility of reconciliation keeping in mind the desire expressed by the three children. The petition was adjourned thereafter from time to time. But the parties could not reconcile and come to a settlement. It is not possible at this stage to find out which of the two parties is not willing to settle the dispute. But it has to be observed that it would have been in the best interests of the minor children if the petitioner and the 1st respondent had patched up the differences and had agreed to reside under one roof only with a view to ensure that the minor children get company of both the parents. Both the parties should have given paramount importance to the wishes expressed by their children. Sadly, the petitioner and 1st respondent are not able to patch up the disputes. They could have even considered of residing under one roof atleast for few years till the children become major.

12. The three children are school going children. It must be stated here that the Sessions Court has passed a very peculiar order. The Sessions Court thought that it is in the interests of the minors that they remain in custody of their parents every alternate month. Such approach, to say the least, is shocking. The learned Sessions Judge has not at all considered the effect of this arrangement on the minors. The Act of disturbing custody of the minors after every one month will cause mental trauma to the minor children. The minor children have already suffered because of the attitude adopted by the parents of not settling the disputes atleast for the sake of children. In a case where there is a dispute between the parents over the custody of minor children, the custody has to be retained with one of the parents with visitation rights and/or right to have temporary custody for few days reserved in favour of the other parent. The arrangement which is made by the impugned order is certainly not in the interests of the minors and by such arrangement, the minors are bound to suffer. Therefore, the order impugned which is certainly not consistent with the welfare of the minors, will have to be quashed and set aside. Now the question which remains is what should be the interim arrangement during the pendency of the main application under section 12 of the said Act. For whatever reasons, for a substantially long time, the custody of the minors has remained with the 1st respondent father. Now it will not be in the interests of the minors to disturb the custody of the father till the main application is heard. The main application under section 12 of the said Act will have to be heard and disposed of expeditiously. However, the petitioner will have to be given right to meet her minor children and to remain in their company for sufficiently long time at periodical intervals. Even the minor children will need the company of their mother. However, interim arrangement will have to be worked out by the parties before the learned Magistrate as the 1st respondent has not chosen to appear before this Court at the time of final hearing.

13. Hence, I pass the following order:

: O R D E R :

(a) The impugned order dated 19th December 2007 is quashed and set aside.

(b) Considering the events which have transpired, till the disposal of the application under section 12 of the said Act, the custody of the minor children of the 1st respondent husband shall not be disturbed unless there are subsequent events warranting change in custody.

(c) The petitioner will be entitled to meet the minor children at regular intervals and to remain in their company for sufficiently long time. The learned Magistrate will pass a proper order in that behalf after hearing both the parties.

(d) The main application under section 12 of the said Act shall be decided as expeditiously as possible and preferably within a period of three months from today.

(e) All contentions of the parties in the main application are expressly kept open.

(f) The writ petition is disposed of in above terms.

(A.S.OKA,J)

 

http://www.indiankanoon.org/doc/88924056/

Child Access & Custody Guidelines- Approved by Bombay High Court, Courtesy “Child Rights Foundation”

November 2, 2012 Leave a comment

Download the child-access-custody-guidelines-approved-by-bombay-high-court

 

:
N.J. Jamadar,
Registrar (Inspection-II),
High Court (A.S.),
Bombay.
To :
Shri Jatin Katira,
Child Rights Foundation,
B-3-13-04, Sector 3,
Vashi, Navi Mumbai-400 703.
Subject : Child Access & Custody
Sir,
With reference to aforementioned subject, I am directed to inform
you that the Hon’ble Guardian Judges of the Family Courts in the State of
Maharashtra, have been pleased to direct the circulation of the Guidelines
amongst the Family Court Judges and the Marriage Counsellors in the
Family Courts across the State of Maharashtra.
I convey my gratitude for your kind gesture in preparing a detail
guidelines which may prove beneficial to the Judges of the Family Courts as
well as the Marriage Counsellors in determining Child access and custody
matters.
With regards,
Yours faithfully,
Registrar (Inspection – II)

Mother asked to Quit Job for upbringing the Child–Bombay High Court

In one of its Judgments, Bombay High Court’s Justice Roshan Dalvi asked the mother to quit her job and stay with her child to get the custody. The Mother is not residing with the child, as the child is in Sangli with her parents. The mother is in Lonavala for Job. Whereas the father of the child resides only 35kms from the parental house of the child’s mother. In these circumstances, if the custody is given to the mother who stays in Lonavala then the father would not get access comfortably. But if she gives undertaking that she will quit the job only then the custody would be preferable as the Father also will access the child comfortably.
pls find below the Full Judgement.

1 WP.4086.2012.sxw
mnm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.4086 OF 2012

Savita Sachin Patil …Petitioner
Vs.
Sachin Suresh Patil …Respondent
Mr. Haribhau Deshinge i/b. Mr. Vijay Killedar,
Advocate for the Petitioner
Ms. Preeti B. Walimbe, Advocate for the Respondent
CORAM : MRS. ROSHAN DALVI, J.
DATED : 18TH JULY, 2012
P.C. :

1. The Petitioner wife has challenged the order of District Judge, IV, Sangli dated 10th February 2012, which was passed upon her application for interim custody of her minor child Nikhil. The parties have been married since 2007. The child was born in 2008. The parties separated since 2010. A complaint under Section 498A came to be filed on 9th April 2010. The wife had left the matrimonial home with the child and was living with her parents in their village. She has claimed that since January 2011 the husband had forcibly taken the child. The wife claims that thereafter the husband represented
to her that the child should stay with him for some days and has
thereafter kept custody of the child with him after she delivered
the child to him. The wife accepted the plea of the husband to
avoid further controversy, but whenever she called upon him to
deliver back the child, he on some pretext or the other failed to
comply.

2. The father has applied for the custody of the child in the trial Court. This itself shows that the father did not have custody prior to the application. The child has remained with the father pending the application.

3. The mother took out the application for interim custody of the child on 20th August 2011. In the impugned order the learned Judge has not considered the merits of the matter. He has neither accepted, nor rejected her application on the ground of delay of 8 months. He has found no urgency to deal with the application for interim custody filed by the mother of the child. He has observed that the application would be heard along with the main petition and the custody of the minor son Nikhil would be continued to be with the father till the decision is taken on merits.

4. The Counsel on behalf of the Respondent has contended that the writ petition does not lie because an appeal is maintainable under Section 43 of the Guardian and Wards Act, 1890. That would be after the interim custody application is either accepted or rejected. Counsel has argued that the fact that the custody of the minor child is to be continued with the husband, shows the order of rejection.

5. I find that the contention is incorrect in view of the
observation of the learned Judge in the impugned order that the
application would be decided with the main Petition. Consequently, only a writ petition would be maintainable.

6. It is contended in the writ petition that the mother does not live with her own parents at her parental home. She lives separately in Lonawala where she has procured an employment. That aspect is admitted by the mother of the child. However, the mother claims that she is prepared to give up her job and take custody of the child by residing with her parents in her parental home. She has also stated to Court that in the alternative, her mother is prepared to live with her in Lonawala.

7. Considering an application of custody of a child of 4 years by the mother is a fragile matter. The Court requires to consider such an application with the child’s interest at the tender age. The urgency or lack of urgency in an application upon any delay may be rightly considered by any Civil Court or even a Family Court in a dispute between the parties themselves who are adults. The order of access applied for by the mother is not granted by the Court upon considering the rights of the mother.

It is granted upon considering the rights as well as the welfare of
the child to have access to his own mother and to be in custody
of the mother. A child of such tender years is even under the
statutory provision contained in Section 6 of the Hindu Minority
and Guardianship Act, 1956 required to be ordinarily given to the mother. Consequently, urgency is implicit in an application
filed by a mother, no matter whatever the previous circumstances.

8. In this case the father has contended that the mother left
the child with her own parents and has gone to another village.
The allegations of adultery are also made. The father has
contended that thereafter the parents of his wife themselves left
the child with him. It may be mentioned that the contention of
the mother stands to reason and would have to be accepted.
Considering the fact that the main Petition itself has been filed
on 3rd January 2011, the contention of the Respondent that after
filing the petition for custody the custody voluntarily came to
him is rather difficult to accept.

9. Under these circumstances I considered it appropriate to meet the child as well as the father, mother and the grandfathers of the child. The maternal grandfather has not been able to attend as he is from Sangli. The father as well as the mother have attended before the Court. The father has also brought with him the paternal grandparents of the child as also the child. The child is of too tender an age to be interviewed. The child has been allowed to meet his mother during the course of the afternoon session of this Court. Over a period of time the child has gone to the mother, played with the mother and has been comfortable with the mother despite a long lapse of 1½ years during which the child was deprived of the love or care of the mother for whatever reasons.

10. The mother of the child who is present in Court undertakes
to the Court that she will leave her employment in Lonawala and go to her parental residence to be with the child after she gets the interim custody claimed by her. The mother also states that in the alternative her own mother will come to live with her in Lonawala so that she can continue her employment.

11. It is seen that the father lives near Sangli at the distance
of only 35 Kms from the parental home of the mother. If the mother is to be given custody of the child, the father must obtain access comfortably. If the Petitioner mother lives in Lonawala that would not be possible. Hence, the mother cannot be allowed to live in Lonawala and claim even interim custody of the child. She would then only be entitled to access at the convenience of the parties and the child. Under these circumstances, the mother gives an undertaking to the Court that she would leave her employment and go to her parental
residence after she gets interim custody.

12. Her undertaking is accepted. The mother shall submit her
resignation and show the Court that fact. The mother shall also
file a written undertaking in the above terms.

13. S.O to 24th July 2012 in Chambers at 2.30 p.m. The father shall bring the child to Court on the next date of hearing.

(MRS. ROSHAN DALVI, J.)

http://bombayhighcourt.nic.in/data/civil/2012/WP1139012180712.pdf

Categories: Child Custody Tags:

Supreme Court Of India decides the custody of Two children to go to the Father.

NON- REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4308 OF 2012

(Arising out of Special Leave Petition (C) No. 13254 of 2011)

Shaleen Kabra Appellant
Vs.
Shiwani Kabra Respondent
With

CIVIL APPEAL NO.4309 OF 2012
(Arising out of Special Leave Petition (C) No. 15819 of 2011)
JUDGMENT
ANIL R. DAVE, J

1. Leave granted.

2. Being aggrieved by the judgment of the High Court of Delhi dated the 21st of February, 2011 in CM(M) 1018 of 2010, these appeals have
been filed by the parties before the High Court, who are parents of two children, whose custody is the subject matter of these appeals.

3. As the impugned order is challenged in both these appeals, both the appeals were heard together and they are being decided by this
common order. For the sake of convenience, parties to the litigation
have been referred to hereinbelow as arrayed in Civil Appeal arising
out of Special Leave petition No. 13254 of 2011.

4. The marriage of the appellant and the respondent was solemnized on
14.02.1994. From the wedlock, two sons were born, who are
approximately 15 and 9 years old. The appellant and the respondent
have been living separately since 10.04.2007, and have been involved
in various litigations since then, including a petition for divorce under Section 13(1)(i) & 1A of the Hindu Marriage Act, 1955 filed by the appellant-father and also proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated by the respondent mother.
The appellant, who is an IAS officer, stationed at Jammu at present, had sought certain modifications in the arrangement of custody of the children, and also permission to take transfer certificates of the children from Delhi and complete their admission in a school in Jammu, and in this respect, moved applications dated 25.05.2010 and 22.06.2010 before the Additional District Judge. The Learned Additional District Judge, vide order dated 19.07.2010 was pleased to allow the applications moved by the appellant-father.

5. Being aggrieved by the above-mentioned judgment delivered by the
Trial Court, the respondent preferred CM(M) No. 1018 of 2010 before
the High Court. By virtue of the impugned judgment, the High Court
partly allowed the petition filed by the respondent whereby the
respondent was permitted to have custody of the younger son, whereas
the appellant was to have custody of the elder son.

6. While coming to the above conclusion, the High Court has cited
various decisions in support of the contention that while deciding the issue about custody of children in a matrimonial dispute, the
paramount consideration is that of welfare of the child. Thereafter, on the basis of interaction with the children in the Chambers, the learned Single Judge was of the view that the elder son had a strong desire to stay with the appellant-father. He also found that there was also an admission by the respondent-mother that she would not be able to adequately handle the educational needs of the elder son without tutors. For the aforestated reasons, the learned Single Judge ordered that custody of the elder son should remain with the appellant-father.

7. In the case of the younger son, the learned Single Judge observed that he, being of a very tender age, was incapable of forming a definite preference as to with whom he wanted to stay. In the circumstances, the learned Single Judge ordered that the custody of the younger son should be given to the respondent-mother, as she would be in a better position to understand the needs of such a young child. On this basis, the custody of the younger son was directed to remain with the respondent.

8. The learned Single Judge also recorded a finding to the effect that both the children appeared to be very happy in the company of each other as there was a strong bonding between them.

9. Being aggrieved by the said judgment, both the parties have come
before this Court vide the present appeals.

10.We heard the learned counsel for the parties, and also spoke to the children at length.

11. The counsel appearing for the appellant-father, at the outset, submitted that the High Court ought not to have directed separation of two children, in view of the close relationship between them and he further submitted that there could be disastrous effect of such a separation on them. Thereafter, the learned counsel made further submissions about the poor academic performance of the younger son while in the custody of the respondent-mother, and also regarding the alleged adulterous conduct of the respondent-mother, which was said to have a severe adverse effect on the children. The learned counsel further added that the father of the appellant, i.e. grand father of the children, is staying with the appellant and he, being a very educated person, would be in a position to take good care of the children. On these grounds inter alia, the learned counsel argued that both the children ought not to have been separated, and that custody ought to have been granted to the appellant-father.

12.On the other hand, the learned counsel appearing for the respondent mother submitted that looking to the service condition and status of the appellant-father, occupying a stressful position in the state of Jammu & Kashmir, he would not have sufficient time to give adequate attention to the children and if custody of the children is given to him, the children would be taken care of only by servants and that would not be in the interest of the children. Further, the learned counsel argued that as the children were already in a very good school in Delhi, it would not be just and proper to move them to another school in Jammu & Kashmir which might be of an inferior standard. For the aforestated reasons, the learned counsel argued that custody of even the elder son ought to have been granted to the respondent-mother.

13.On hearing the learned counsel and also upon talking at length with the children, we find force in the arguments of the counsel for the appellant-father.

14.Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other.

15.If we are of the view that both the brothers should not be separated and should be kept together, the question would be as to who should be given custody of the children.

16.We are of the view that the children should be with the appellant father. The respondent-mother is not in a position to look after the
educational need of the elder son and as we do not desire to separate
both the brothers, in our opinion, looking to the peculiar facts of the case, it would be in the interest of the children that they stay with the appellant-father.

17.We are sure that the appellant- father, who is a member of Indian
Administrative Service and is a well groomed person, with the help of
his father, who was also a professor, will be able to take very good
care of the children. Their education would not be adversely affected
even in Jammu and Kashmir as it would be possible for the appellant father to get them educated in a good school in Jammu. We do not
believe that the children would remain in company of servants as
alleged by the learned counsel appearing for the respondent-mother.
Father of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated
grandparents would not only help the children in their studies but
would also help them to imbibe cultural and moral values and good
manners.

18.So as to see that the respondent-mother is also not kept away from the children, she shall have a right to visit the children atleast once in a month. The appellant –father shall make arrangements for A.C. First Class railway ticket for the respondent-mother or shall pay the railway fare to her so as to visit the children once in a month at a weekend and the appellant-father shall also make arrangements for stay of the respondent-mother either at his own residence, if the respondent mother agrees to that, otherwise the appellant-father shall make arrangements for suitable accommodation for the respondent-mother when she comes to Jammu to visit the children.

19.During the period of vacation exceeding two weeks, the appellant father shall send the children to Delhi so that the children can stay
with the respondent-mother atleast for three days. We are sure that the appellant and the respondent shall determine the modalities as to
during which portion of the vacation, the children should visit the
respondent-mother as almost both the parents are interested in having
the company of the children.

20. For the aforestated reasons and looking to the peculiar facts of the case, we quash and set aside the impugned order passed by the High Court and restore the order of the trial court, subject to modification of conditions-arrangements, recorded hereinabove. The custody of both the children shall be given to the appellant-father before 15th May,2012 and the arrangements with regard to visit of the children etc. shall take effect from 1st June, 2012, the respondent-mother shall do the needful to send the younger son to the residence of the appellant father before 15th May, 2012.

21.The appeals are accordingly allowed with no order as to costs.

…………………………J
(D.K. JAIN)
…………………………J
(ANIL R. DAVE)
NEW DELHI
May 8 , 2012

Categories: Child Custody Tags:

Husband get divorce u/S 13(1)(ia) and (ib) of HMA but the Bombay HIgh Court set asides the order of Maintenance to the wife which was rejected by Family Court.

July 5, 2012 1 comment

A husband who won the Divorce & Maintenance battle in Family Court has to run pillar to post even after the mental cruelty from Wife…this time its from Bombay High Court. Even after the Maintenance application of Wife was rejected by Family Court u/s 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956, the Bombay High Court ordered to set aside the same and directed the Lower Court for the Re-trail of the said application.

below is the Judgement

fca28.12.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.28 OF 2012

Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401202. … Appellant
(Ori.Respondent)

Versus

Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. …. Respondent
(Ori.Petitioner)

AND

FAMILY COURT APPEAL NO.29 OF 2012
WITH
CIVIL APPLICATION NO.41 OF 2012

IN
FAMILY COURT APPEAL NO.29 OF 2012
1. Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401 202.
2.Chi.Palak Nitin Shah,
aged about 19 years, Indian Inhabitant,
residing at C/o.Champaklal Hemchand Shah,
A-204 Shelter C.H.S. Ltd. Ambadi Road,
1 of 18
SQP
fca28.12.sxw
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), District Thane-401 202. … Appellants
(Ori.Petitioners)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. …. Respondent
……
Mr.Ajit Karwande for the Appellants.
Respondent-husband present in-person.
……
CORAM: A.M. KHANWILKAR &
A.R.JOSHI, JJ.
JUDGMENT RESERVED ON : 15TH JUNE, 2012
JUDGMENT PRONOUNCED ON : 21ST JUNE, 2012
JUDGMENT (Per Khanwilkar, J.) :
1. We propose to dispose of both these Appeals together by this
common Judgment.
2. Appeal No.28/2012 is directed against the Judgment and Decree
passed in Petition No.A-1082/2007 dated 1st December, 2011 passed by
Family Court No.VII, Mumbai, whereby, the Family Court allowed the
Petition filed by the respondent-husband for dissolution of marriage and divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.
3. The other Appeal being Appeal No.29/2012 is also filed by the
wife along with daughter challenging the common Judgment dated 1st
December, 2011 passed by the Family Court No.VII, Mumbai in Petition
No.C-136/06 praying for maintenance and separate residential
accommodation for herself and minor daughter Palak Nitin Shah under
Section 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956.
4. The Family Court by the common Judgment has dismissed the
petition filed by the wife and minor daughter for maintenance and
residential accommodation but has allowed the Petition filed by the
husband for dissolution of marriage and decree of divorce. We would
first examine the challenge to the decree of divorce by the appellant wife.
5. The respondent husband in his Petition filed under Section 13(1)
(ia) and (ib) of the Hindu Marriage Act has stated that the marriage
between the parties took place on 5th February, 1990. They were blessed with one daughter named Palak. After few years, discord between the spouses took place as a result of very rude behaviour of the wife. The wife was uninterested in domestic work. She picked up quarrels on unessential matters and created unhealthy atmosphere in the house. The wife was in the habit of making false, frivolous and concocted allegations against the husband and his family members. She went to the extent of making false allegations against the husband having illicit relationship with his two real sisters. That on 1st June, 2005, the wife left her matrimonial home on her own and inspite of persuasion by the husband and his relatives, she refused to join the company of the husband. On the basis of these allegations, the husband prayed for dissolution of marriage between the parties solemnized on 5th February, 1990 at Mumbai and the decree of divorce.

6. The appellant wife filed written statement to oppose the said
Petition. The parties adduced evidence in support of their respective
claim. The Family Court adverting to the relevant evidence and placing emphasis on the admissions given by the appellant wife in her crossexamination, accepted the claim of the respondent husband. The Family Court in the common Judgment has highlighted the admissions of
appellant in her cross-examination wherein she has admitted that she did not lodge any complaint before police against respondents or his family members. Further, she does not have any evidence to show that she was tortured mentally as well as physically. She admitted that she got her daughter admitted in Nazareth School without consent of her husband and she had never discussed with husband about the same. She has also admitted that the husband and his family members approached her and tried to convince her to come back to her matrimonial home on two occasions. She has admitted in the cross-examination that she saw the illicit relations between her husband and his real sisters. The Family Court has then considered the admission of appellant’s witness PW 2 i.e. daughter Palak. It has then noted that besides the oral admissions of the appellant and her witness, even the documentary evidence goes against the appellant. It took into account the pleadings and oral evidence of the parties, more particularly, in respect of the allegation about the illicit relations of husband with his sisters. The appellant had made those allegations in her letters sent to the husband and reiterated the same in the pleading and also in the oral evidence and justified the same on the ground that that was her inner feeling. The Family Court,
therefore, opined that the allegations by the appellant wife about illicit relation between husband and his sister were unsubstantiated and frivolous. The Family Court has noticed the letters Exhibit 62 and Exhibit 63, in addition to the stand taken in the written statement as well as oral evidence of the appellant. The Family Court on analysis of the above material then proceeded to authoritatively hold that the wild allegations made by the wife against the husband about illicit relations between him and his sisters, coupled with the fact that inspite of attempt made by the husband and his family members to persuade the appellant wife to come back to her matrimonial home and resume cohabitation/conjugal rights, she failed to do so, answered the issue against the appellant wife and therefore, dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1) (ia) and Section 13(1)(ib) of the Hindu Marriage Act. This is the sum and substance of the finding and the conclusion reached by the Family Court to answer the matter in issue.
7. We have heard Mr.Karwande for the appellant wife and the
respondent husband who has appeared in-person. No doubt,
Mr.Karwande made strenuous effort to persuade us to take the view that the common Judgment of the Family Court is completely unsustainable as it fails to analyse the evidence properly and to record finding of fact in the context of the separate issue that was required to be answered before concluding that the petition filed by husband for dissolution of marriage and divorce deserves to be allowed. The argument is attractive at the first blush. However, as aforesaid, the Family Court has adverted to the substance of the pleading and oral and documentary evidence adduced by the parties. The Family Court has deduced its conclusion on that basis.
After having perused the relevant pleadings and the evidence on record, which this Court in appeal is expected to do, the conclusion reached by the Family Court in dissolving the marriage between the parties and passing decree of divorce is inevitable. We are inclined to uphold the order of dissolution of marriage and the decree of divorce.
8. We would first deal with the ground ascribable to Section 13(1)
(ia) of the Hindu Marriage Act. The Family Court has adverted to
different allegations found in the petition filed by the husband. In our opinion, the decree passed by the Family Court ought to be upheld on the ground of cruelty considering the fact that the appellant wife in her communication dated 11th May, 2006 in response to the letters sent by the respondent husband dated 5th December, 2005 and 11th January, 2006 has stated about the incidents she had personally noticed indicative of illicit relations between the respondent husband and his sisters. We refrain from reproducing those allegations in this Judgment. Suffice it to mention that the same are serious and disparaging remarks. The respondent husband in his petition has pointedly referred to the said communication, being one of the acts committed by the appellant wife which had caused immense mental agony and cruelty to him. The appellant wife in the written statement went on to reiterate those allegations and gave justification that the letters sent by her on 11th May, 2006 was a privileged communication between the husband and wife. She has further justified her stand on the ground that she had stated those
facts in the said letter on the basis of “her inner feelings”. This defence is found in paragraph XIV of the written statement. The husband in his evidence has reiterated the position that making of such malafide, reckless and frivolous allegations by the wife constituted severe mental cruelty to him. Nevertheless, the appellant wife in her oral evidence (cross-examination) went on to assert that she personally saw the illicit relations between the respondent husband and his real sisters and she had written about the same in her communication dated 11th May, 2006 sent to respondent husband on the basis of her inner feelings. Admittedly, no contemporaneous evidence has been produced by the appellant wife to
corroborate her version. The facts stated by her in her communication
dated 11th May, 2006 on which she has placed reliance have not been
substantiated by the appellant at all, except her bare words. The making of such false, frivolous and unsubstantiated allegations against the husband in the communication as well as reiterating the same in the written statement and also in the oral evidence given by the wife before the Court was bound to cause mental cruelty to the husband. It was clearly an attempt to sully the reputation not only of the respondent husband but also of the two sisters who were in the profession of Medicine and Law respectively. That, by itself, is a good and germane ground to dissolve the marriage between the parties and to grant decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. We need not deal with the other allegations concerning ground of cruelty. Even the Family Court has not touched upon those allegations but in substance has opined that this ground established from the record was sufficient to grant decree of divorce. In other words, the decree of divorce under Section 13(1)(ia) deserves to be upheld in the fact situation of the present case.

9. The Family Court has also dissolved the marriage between the
parties and granted decree of divorce on the ground under Section 13(1)(ib) i.e. desertion. As an appellate Court, having upheld the decree of divorce on one count, which is formidable one and unassailable on any count, it may not be necessary to dilate on other grounds to sustain the decree. Be that as it may, we find that even though the Family Court has not thoroughly analysed the pleadings and evidence on record in the context of Section 13(1)(ib), but has certainly referred to the substance of the pleadings and the evidence. The Family Court has noted that appellant wife left the matrimonial house on her own on 1st June, 2005 and that inspite of persuasion by the respondent husband and his family members on two different occasions, she refused to resume cohabitation/conjugal rights. The fact that she left her matrimonial home on 1st June, 2005 is admitted by the wife. She has also admitted that after leaving the matrimonial home, she stayed with her father. Further, she took away her daughter along with her and got her admitted in Nazareth School without consulting her husband or informing him about the same.
She has also admitted that the husband and his family members had come to her on two occasions to convince her to resume cohabitation/conjugal rights, but she did not go back to her matrimonial house. On the basis of these admitted facts, the Family Court has granted decree of divorce also on the ground of desertion under Section 13(1)(ib).
10. As aforesaid, on reading the impugned Judgment, it may appear
that it has straightway jumped to conclusion against the appellant wife.
Notably, the Court has rightly noted the essential factors to constitute the
ground of “desertion”. Such as, factum of separation, intention to bring
cohabitation permanently to an end, the element of persuasion. In the
10 of 18
fca28.12.sxw
communication sent by the wife to the husband and more so in her
pleading and oral evidence before the Court, the appellant wife has given
admission on the above aspects. The fact that the parties separated on 1st
June, 2005 is indisputable. The husband having approached appellant
wife as also his family members on two occasions to persuade the
appellant to resume cohabitation/conjugal rights has been admitted by the
appellant wife. However, she refused to go back. It necessarily follows
that the appellant wife had shown intention to bring cohabitation
permanently to an end. Even persuasion by respondent husband and his
family members did not work with the appellant. She steadfastly refused
to join the matrimonial home. In this backdrop, the finding as well as the
conclusion reached by the Family Court of dissolving the marriage
between the parties and granting decree of divorce under Section 13(1)
(ib) is also unexceptionable.
11. As aforesaid, no interference is warranted with the final order
passed by the Family Court in dissolving the marriage between the parties
and granting decree of divorce on the ground of cruelty and desertion
under Section 13(1)(ia) and 13(1)(ib) in favour of respondent husband
and against the appellant wife.
11 of 18
fca28.12.sxw
12. That takes us to the other Appeal arising out of the dismissal of
Petition filed by the appellant wife, for maintenance and separate residential
accommodation, by the common judgment and decree. Indeed, this Petition
was filed by the appellant wife in earlier point of time. The Petition for
dissolution of marriage and divorce was filed by the husband, during the
pendency of the maintenance petition. The claim in the maintenance petition
was founded on the ground under Section 18(1) and 18(2) (a), (e) and (g). In
other words, appellant wife claimed separate residential accommodation from
her husband without forfeiting her claim of maintenance, on the ground of
desertion by the husband and of abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her. The second
ground was that she was treated with such cruelty as to cause reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband and, thirdly, that there are other causes justifying living separately. The
Trial Court has examined the subject issues while considering the question of
awarding maintenance amount to the wife and the daughter as well as of
separate residence to the wife, together. Indubitably, these issues were distinct
and were required to be analysed and decided separately. Further, the same
have been disposed of together by cryptic judgment, in the following words:
12 of 18
fca28.12.sxw
“Issue Nos. 1 to 4 (in Petition No. C-136/2006)
22. The evidence is already discussed above. To avoid
repetitions and the issues involved in this case, it is sufficient to
mention that Bhavna(wife) left the matrimonial home on her own.
She took with her minor daughter, who has attained majority today.
She even failed to inform the husband. She admits that she has no
proof of physical or mental cruelty. She has not proved reasonable
cause to reside separately.
23. There is sufficient evidence on record to show that
Nitin(husband) was willing to continue matrimonial relations. He has
made request in writing (Exh 62 and Exh 63) Bhavana (wife) has not
bothered to reply it. Palak (P. W. No. 2) admits that sister of
respondent had come to convince her and mother to come to reside
with them. Bhavana(wife) also admits that on two occasions the
husband and his family members came to bring her back. Sec. 18(1)
of Hindu Adoption and Maintenance Act, 1956 provides wife shall
shall be entitled to be maintained by her husband during her life time.
Sub-clause (2) provides – a Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to
maintenance:-
a) If he is guilty of desertion,
b) If he has treated her with cruelty,
c) If he is suffering from a virulent from of leprosy,
d) If he has any other wife living,
e) If he keeps a concubine in the same house,
f) If he ceased to be a Hindu by conversion, if there is any other
cause justifying her living separately.
24. The rights and liabilities are co-relative. If any one want
rights, then he has to perform liability. No doubt, the wife is entitled
to live separately for any of the just grounds as provided under sec.
18(2) of The Hindu Adoptions and Maintenance Act, 1956. The
entire evidence on record shows that Bhavana(wife) is at fault. She
herself treated the husband with cruelty. She has deserted him
without reasonable cause. She has failed to prove her claim.
25. The argument (Exh. 86) advanced by wife is mainly
relating to properties or without any factual or legal support. Hence,
need no reply. Therefore, I answer point nos. 3 to 4 in the negative.”
13. In substance, the Family Court was influenced by the fact that, in the
accompanying Petition, it was already found that appellant wife had left the
13 of 18
fca28.12.sxw
matrimonial home on her own, along with her minor daughter and was not
willing to return back, even though the respondent husband was willing to
continue with the matrimonial relation. Thus, the Family Court held that the
appellant wife is dis-entitled from claiming maintenance from her husband. As
regards the maintenance amount payable to daughter Palak, the Family Court
noted that she has attained majority. The fact that she was still unmarried, has
not been reckoned at all. Be that as it may, we are of the considered opinion
that the manner in which the Petition for maintenance and separate residence,
filed by the appellant, has been decided, is undesirable. The Family Court
ought to have analysed the pleadings and evidence in the context of the claim
of maintenance by wife and unmarried daughter, though attained adulthood.
14. The respondent has placed emphasis on the decision of the Rajasthan
High Court in Shimla Devi vs. Kuldeep Sharma AIR 1999 Rajasthan 181. In
that case, the Court proceeded on the finding that the wife was unwilling to
reconcile and resume cohabitation. Notably, the said judgment considered the
correctness of the decision of the Family Court by which the marriage between
the parties came to be dissolved and decree of divorce was passed. The
observations found in Paragraph 7 and 8 of the said decision, on which
emphasis has been placed, will be relevant in the context of the issue of
dissolution of marriage and passing of decree of divorce. Reliance was then
placed on the decision in the case of Deb Narayan Halder vs. Smt. Anushree
14 of 18
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Halder AIR 2003 SC 3174. The Court found that the reasons given by the
wife, about her ill treatment, were non existent and unsubstantiated. The Court
then proceeded to hold that the wife left the matrimonial home without any
justification. On that basis, the Court answered the issue of maintenance under
Section 125 of the Code of Criminal Procedure, which is attracted when the
person, having sufficient means, neglects or refuses to maintain his wife and
unmarried daughter, though they are not able to maintain themselves. Section
18(1) of the Hindu Adoption and Maintenance Act, 1956 bestows right in the
Hindu wife, being entitled to be maintained by her husband during her life
time. Indeed, the opening words of the said Section are of some significance,
which read – “subject to the provisions of this section”. Sub-Section (1) of
Section 18, distinctly deals with issue of maintenance of Hindu wife, by her
husband, during her lifetime. Whereas, Section 18(2) of the Act bestows right
in the Hindu wife to be entitled to live separately from her husband without
forfeiting her claim of maintenance. In the present case, besides the issue of
maintenance of wife, it was necessary to examine the independent claim of the
unmarried daughter – who at the time of institution of the petition was
admittedly minor.
15. As regards the claim of the appellant wife for providing separate
residential accommodation, even if we were to take the view that the Family
Court in substance has found that the appellant wife has not substantiated the
15 of 18
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requirements specified in Clause (a) and Clause (b) of Sub-Section (2), even
then, the Court was obliged to analyse the pleadings and evidence of the parties
in the context of the requirements of Clause (g) of Section 18(2), which entitles
the Hindu wife to live separately from her husband without forfeiting her claim
to maintainance on account of any other cause justifying living separately. That
was one of the ground pressed into service by the appellant for her claim of
separate residence, in her Petition, which is noted even in the opening part of
the Judgment. The Family Court ought to have considered the matter in that
context.
16. On a bare perusal of Section 18, it is amply clear that the sweep of
each requirement under Sub-Section (2) is markedly different. In other words,
each of these causes in clauses (a), (b) and (g), invoked by the appellant wife,
operate in different spheres. It was but appropriate that the Family Court ought
to have analysed the material on record to answer the same independently and
not to jump to a conclusion.
17. Considering the fact that the Family Court has not properly dealt with
the issues of maintenance and separate residence, we deem it appropriate to
quash and set aside the reasons and the conclusion on these two issues, which
have been considered in Petition No. C-136/2006, filed by the wife along with
the daughter. Instead, the parties will have to be relegated before the Family
16 of 18
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Court for reconsideration of the said matter afresh from the stage of oral
arguments, on its own merits, in accordance with law, uninfluenced by any
observation made in the impugned decision on the said issues.
18. We may place on record that we are not specifically touching upon
the arguments canvassed by the parties, in relation to these two issues of grant
of separate residence to wife and maintenance amount payable to the wife and
daughter, unmarrried though. Inasmuch as, any observation made in that
behalf would affect the parties one way or the other. In other words, all the
contentions available to the parties, in Petition No. C-136/2006, are kept open.
19. Accordingly, we proceed to pass the following order:
O R D E R
(1) The Appeal No.28/2012 filed by the wife challenging the
decree of dissolution of marriage between the parties and divorce is
dismissed. Instead, the said decree, passed by the Family Court at
the instance of the respondent/husband, is upheld and maintained.
(2) The Family Court Appeal No.29/2012 is allowed. The
judgment and decree, passed in Petition No. C-136/2006 is quashed
17 of 18
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and set aside. Instead, the parties are relegated before the Principal
Judge, Family Court, Mumbai for reconsideration of the said Petition
afresh from the stage of oral arguments. All questions therein are left
open.
(3) The parties shall appear before the Principal Judge of the
Family Court, Mumbai on 2nd July, 2012, who may take up the said
Petition No.C-135/2006 himself or assign it to any other Judge of the
Family Court at Mumbai for denovo reconsideration from the stage
of arguments. The Concerned Judge shall dispose of the said
Petition expeditiously.
(4) No order as to costs.
(5) In view of the above order, Civil Application stands
disposed of.
(A.R.JOSHI,J.) (A.M.KHANWILKAR,J.)
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Wife fined 2 lakh wrt DV Act proceedings for “making mockery of the judicial process”, Contempt and for suppression of facts!!

February 28, 2012 Leave a comment

Delhi High Court
Douglas Breckenridge vs Jhilmil Breckenridge on 21 February, 2012
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 20.12.2011

% Judgment delivered on: 21.02.2012 + CONT.CAS(C) 815/2011 and C.M. No. 20360/2011 DOUGLAS BRECKENRIDGE ….. Petitioner Through: Mr. Neeraj Kishan Kaul, Senior

Advocate, with Mr. P. Banerjee &

Mr. Atreyi Chatterjee, Advocates.

versus

JHILMIL BRECKENRIDGE ….. Respondent Through: Ms. Geeta Luthra, Senior Advocate,

with Mr. Harish Malik, Advocate.

CORAM:

HON’BLE MR. JUSTICE VIPIN SANGHI

JUDGMENT

VIPIN SANGHI, J.

1. The present petition has been preferred under Sections 10 and 12 of the Contempt of Courts Act, 1973 read with Article 215 of the Constitution of India, with the allegations to the effect that the respondent has deliberately and willfully disobeyed the orders dated 30.09.2010 and 05.04.2011 passed by the Guardianship Court, Saket Courts, New Delhi, CONT.CAS(C) 815/2011 Page 1 of 57 passed in Guardian Case No.66/2010 and also the orders of the Metropolitan Magistrate dated 13.10.2011 in CC No.332/1, and of the Additional Sessions Judge dated 19.10.2011 passed in Protection of Women from Domestic Violence Act, 2005 (DV Act) proceedings.

2. The petitioner and the respondent are husband and wife. Out of their wedlock, they have four sons. The petitioner has preferred a divorce petition against the respondent.

3. The petitioner filed a custody petition before the Guardianship Judge, Saket, New Delhi. In the petition the petitioner stated that he resides with his three elder children at C-87, Anand Niketan, New Delhi, of whom he has custody, whereas the respondent resides with her parents at 68, Friends Colony (West), New Delhi. According to the petitioner, the respondent abandoned the matrimonial home on Raksha Bandhan day, i.e. 24.08.2010. She left the three elder children with the petitioner, and took away the youngest child Liam with her. The custody petition had been preferred to seek custody of the youngest son Liam from the respondent wife. The petitioner also moved an application in those proceedings to seek interim custody under Section 12 of the Guardians and Wards Act, 1890. CONT.CAS(C) 815/2011 Page 2 of 57

4. The petitioner apprehended that the respondent would take the child Liam with her to U.K., where she was allegedly having an adulterous relationship with one Dr. Nooruddin Ahmed of Aylesbury, U.K. On 09.09.2010, the Guardianship Judge recorded the undertaking of the respondent that she shall not take the child Liam from the territorial jurisdiction of the Court, without the permission of the Court.

5. The proceedings before the Guardian Court were fixed on 30.09.2010. The respondent had, in the meantime, left for U.K. to allegedly meet her alleged paramour. She could not take the child Liam with her on account of her undertaking given to the Guardianship Judge on 09.09.2010. According to the petitioner, the child Liam, who was left by the respondent with her parents in Friends Colony, was handed over by his parents-in-law to him.

6. Accordingly, on 30.09.2010, the child Liam was produced by the petitioner before the Court. The learned Guardianship Judge saw for himself that the petitioner had the custody of the child Liam, who was produced in Court by the petitioner. Consequently, the learned Guardianship Judge, upon consideration of the matter and looking to the facts and circumstances of the case, that the custody of the child Liam had come into the hands of the CONT.CAS(C) 815/2011 Page 3 of 57 petitioner, disposed of the application under Section 12 of the Guardian and Wards Act., 1890.

7. The order dated 30.09.2010 is relevant and, therefore, reproduced herein below:

“G No 66/10

30.09.2010

Present: Sh.P. Banerjee and Liza Baruah advocate for petitioner with petitioner.

None for respondent.

In the morning one advocate appeared on behalf of respondent and filed reply to the petition of the petitioner along with extra copy for the petitioner. The copy of the petition has been supplied to petitioner.

It is informed by counsel for petitioner that

respondent left Delhi and went to U.K. On 16.09.2010 by leaving the child Liam at her father’s home. It is further submitted that the parents of respondent dropped the child at the residence of petitioner and since, then the child in the custody of petitioner. It is further submitted that since the child has already come in the custody of petitioner, therefore, the application for interim relief may kindly be disposed of. Considered. The petitioner is present with the child in the court. Keeping in view the fact that the child whose custody was sought by the petitioner has already come in his custody therefore the prayer made in an application under Section 12 of the Guardian and Wards Act stands satisfied, thus, the application under Section 12 is disposed of.

CONT.CAS(C) 815/2011 Page 4 of 57 Petitioner seeks time for filing rejoinder to the reply of the respondent. Heard. Allowed. Let the same be file within three weeks from today with advance copy to opposite party. Be put up for rejoinder the petitioner, if any, otherwise admission denial of documents and framing of issues on 27.11.2010.” (Emphasis supplied)

8. In December 2010, the respondent moved an application before the Guardianship Judge. In this application, the respondent contended that the petitioner had, inter alia, “barred access of the applicant to all four children of the parties….. ….. …..” She complained that she is denied the use of any room in the matrimonial house, and she is forced to stay only in the living room. She also complained that the keys of the house are not provided to her. She also complained that she is not allowed to join her children and the petitioner on family outings. The prayer made by the respondent in this application was to seek a direction “that the children of the parties are allowed to access to the Applicant and be permitted to interact with her and that no inconvenience, interference or annoyance be caused in her relationship with their children and that the Non-Applicant not assume to himself the unilateral authority to decide how the children should behave or when and which manner the Applicant, subject to his absolute discretion, associates and interacts with them”.

CONT.CAS(C) 815/2011 Page 5 of 57

9. While this application was pending, the matter again came up before the learned Guardianship Judge on 05.04.2011. The parties, with a view to amicably settle their disputes, agreed to refer the matter to the Mediation Centre, Delhi High Court, New Delhi. The Court, inter alia, gave the following directions on the said date:

“Heard. Till the parties explore the possibility for amicable resolution of dispute before the Mediation Centre, the following arrangement is made with respect to the visitation rights of the respondent with the minor children without prejudice to the rights and contentions of both the parties.

1. The petitioner has agreed that he will hand over the key of the house to the respondent for having free access to the house.

2. It has been agreed between the parties that the respondent will have free access to all the minor children so that she may have healthy relationship with the children and she may offer motherly affection to them.

3. The respondent is not permitted to take the minor children out of NCR.

The aforesaid arrangement shall continue till further orders.

Matter be put up for compromise between the parties, if any, otherwise for arguments on application under Order 7 Rule 11 CPC moved by the respondent and other pending applications of parties, if any, on 20.05.2011. Copy of order be given dasti to both the parties.” (Emphasis supplied) CONT.CAS(C) 815/2011 Page 6 of 57

10. While the aforesaid orders were holding sway, the respondent, it is alleged, picked up Liam from the school on 13.10.2011 at about 1:30 p.m. and disappeared without intimating as to where she was taking Liam. Upon enquiry, it transpired that Liam had been taken by the respondent to her place of residence, i.e. 68, Friends Colony (West), New Delhi.

11. The respondent, it appears, instituted proceedings under Section 12 of the DV Act on 12.10.2011, and moved an interim application in those proceedings to seek a restraint against the petitioner from interfering in the respondent’s custody of the minor son Liam. The definite case of the respondent was that she had the actual custody of child Liam.

12. This petition under Section 12 of the DV Act was registered as CC No.332/1 and came up before the learned Metropolitan Magistrate on 13.10.2011. The respondent/complainant was represented through her senior counsel Ms. Geeta Luthra with Mr. Sanjeev Sahay, Advocate. The petition had been filed by Sh. Shashank Kumar Lal, Advocate on behalf of the respondent. The learned Metropolitan Magistrate, after hearing the arguments of the respondents counsels, passed, inter alia, the following order:

CONT.CAS(C) 815/2011 Page 7 of 57 “Present; Complainant and child with Sr. Adv. Geeta Luthra and Sanjeev Sahay, Adv.

Arguments heard. It is stated by Sr. counsel that there is imminent apprehension that the respondent may remove the youngest child namely Liam from the custody of aggrieved person unlawfully.

I have gone through the petition filed by the complainant as well as considered the submissions carefully. In para no. 68 of the petition filed by the aggrieved person there is reference to the proceedings filed by the respondent herein with regard to the youngest child Liam in Guardianship court. However, the language used in the said para is ambiguous and does not reflect clearly the orders passed by the Ld. Judge in the Guardianship court. Counsel for complainant seeks time to file amended petition and also seeks liberty to file orders passed in the Guardianship court in the petition filed by the respondent.

Put up for consideration on 14.10.2011 at 3:00 pm.” (emphasis supplied)

13. From the aforesaid, it is clear that the learned Metropolitan Magistrate noticed the averment made in para 68 of the petition preferred by the respondent under Section 12 of the DV Act and, as the same appeared to be ambiguous, granted time to the respondent/complainant to file an amended petition, and also to file orders passed in the guardianship petition by the Guardianship Court.

CONT.CAS(C) 815/2011 Page 8 of 57

14. It appears the respondent filed an application to seek amendment, inter alia, in para 68 of the petition under Section 12 of the DV Act. After incorporating the aforesaid corrections, the corrected para 68 of the said petition reads as follows. For the sake of better understanding, the words which have been replaced have also been incorporated, but have been struck of.

“68. In order to succeed in his purpose to discredit the complainant by fabricating and creating evidence, the respondent had filed two petitions against the complainant (1) guardianship of the youngest child under Section 7 and 10 of the Guardians and Wards Act. The said child was of around 4 years of age and the petition was filed in August, 2010. Although the respondent had sought directions for handing over the custody of the child Liam to from the complainant, no such Order was made however, the

respondent complainant did not have any objection to the Order regarding Non removal of child Liam from the territorial jurisdiction of the Hon’ble Court as the complainant is residing and has been working for gain within the territorial jurisdiction of the Hon’ble Court. (2) Petition under Section 27(1) (d) (e) of the Special Marriage Act for Decree of Divorce of Marriage on the alleged ground of cruelty, unsoundness of mind and adultery. The said petition was filed on 07.01.2011″. (amended words have been shown in bold)

15. It appears, the respondent produced only an uncertified copy of the statement made by her on 09.09.2010 in the guardianship proceedings, before the learned Magistrate dealing with the D.V. Act proceedings. The CONT.CAS(C) 815/2011 Page 9 of 57 respondent/complainant did not file the order dated 09.09.2010, and also did not file the subsequent orders passed in those proceedings, including the orders dated 30.09.2010 and 05.04.2011, as aforesaid.

16. On 14.10.2011, the learned Metropolitan Magistrate passed the order, the relevant extract whereof reads as follows: “C.C. No.332/1

14.10.2011

Present; Complainant with Sr. Adv. Ms. Geeta Luthra along with Adv. Jatin Sehgal, Shashank

Kumar Lal.

An application has been filed now on behalf of

complainant seeking permission to correct the typographical errors in the petition filed by the complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act). It is stated by counsel for complainant that due to inadvertence, certain typographical errors have occurred in the petition which are stated in the instant applications. The counsel for complainant further requests that correct complaint may be taken on record. Heard. The errors stated by the

complainant in the instant application appear to be only typographical errors and do not change the cause of action in any manner. Therefore, application is allowed. Amended/corrected petition under Section 12 of DV Act is taken on record. Counsel for complainant has also filed uncertified copy of statement dated 09.09.2010 made by the complainant in the court of Ms. Ravinder Bedi, JSCC CUM ASJ Guardian Judge. However, the complainant has not filed any order dated 09.09.2010 passed by Ld. Guardian Judge.

CONT.CAS(C) 815/2011 Page 10 of 57 File perused. Arguments heard. This is a petition under Section 12 of DV Act. There are sufficient grounds to summon the respondent.

xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx

At this stage, it is stated by counsel for complainant that complainant and respondent are residing together

presently at C-87, Anand Niketan, New Delhi. It is also stated by counsel for complainant that there is imminent apprehension that the respondent, who is a US citizen, may remove the youngest child of the parties namely Liam Dorje Breckenridge outside the territorial jurisdiction of the court. Therefore, counsel for complainant has sought ex-parte interim protection to the respondent not to interfere in the custody of minor son Liam Dorje

Breckenridge aged about 5 years with the complainant. xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx

I have bestowed my careful consideration to the

submissions of Ld. Sr. Adv. for complainant and also perused the petition filed under Section 12 of DV Act along with documents. The respondent has already filed petition before the Guardianship court under Section 7 and 10 of Guardians and Wards Act with regard to the custody of minor son Liam Dorje Breckenridge, which is pending consideration before Ld. Guardian Judge. In the

circumstances of the case, I am of the opinion that the aggrieved person is entitled for some ex-parte interim protection order under Section 21 of DV Act. Accordingly, respondent is restrained from removing the child Liam Dorje Breckenridge from the territorial jurisdiction of this court till further orders. No ground is made out for passing any other order at this stage. The applicant is directed to serve the instant ex-parte order passed today on the respondent forthwith by way of RC and filed an affidavit to CONT.CAS(C) 815/2011 Page 11 of 57 this effect within 3 days. Copy of this order be given dasti to the aggrieved person.” (Emphasis supplied)

17. According to the petitioner, the aforesaid order did not satisfy the respondent, as this order merely injuncted the petitioner from removing the child Liam from the territorial jurisdiction of the Court till further orders. However, the said order did not vest custody of the child Liam in the respondent, which had passed into the hands of the petitioner, as observed by the learned Guardianship Judge in his order dated 30.09.2010. The respondent, therefore, preferred an appeal before the District and Sessions Judge, Saket under Section 29 of the DV Act.

18. The grievance made by the respondent in her appeal under the DV Act was to the following effect:

“The Ld. Trial Court without taking into consideration the facts and circumstances and the apprehension of the appellant passed an erroneous impugned order whereby the Ld. Trial Court after considering that the appellant has the custody of minor child, restrained the respondent from removing the minor child outside the territorial jurisdiction of this Hon’ble Court and by inadvertently not mentioning that the respondent should also be restrained from removing the child from the custody of the

Appellant. Copy of the Domestic Violence Complaint along with all the annexures is annexed as ANNEXURE P-2. Furthermore, the Ld. Trial Court committed an error while passing the impugned order by not granting a stay CONT.CAS(C) 815/2011 Page 12 of 57 to the appellant from dispossession, even after taking into consideration that the appellant is living in the shared household with the respondent and all four children, where she has a legal right. Therefore, the appellant being aggrieved from the impugned order is filling the present appeal as there is no other efficacious remedy available.”

19. From the aforesaid, it is clear that the definite and positive case of the respondent before the appellate court was that she had the actual physical custody of the child Liam, when the petition under the DV Act was preferred and also when she preferred the appeal under the aforesaid Act.

20. The learned ASJ dealing with the respondents said appeal passed an order on 19.10.2011. The relevant extract from the said order reads as follows:

“19.10.2011

Present: Ms. Geeta Luthra Senior Advocate with Sh. Jatin Sehgal, Ld. Counsels for the

applicant/appellant.

xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx I have heard the submissions of the Ld. Counsel. The only urgent relief on which the ld.Counsel for the applicant/appellant had laid emphasis is regarding the custody of the child namely Master Laim Dorge

Breckenridge aged about five years. This child is already with the applicant/appellant namely Jhilmil Breckenridge. It is mentioned in the complaint under Section 12 of the Act in Para 68 that respondent Doughlas Breckenridge has filed a CONT.CAS(C) 815/2011 Page 13 of 57 petition under Section 7 and 10 of the Guardian and Wards Act for the custody of the minor child namely Master Liam Dorge Breckenridge. In the proceedings before the Guardian Judge the applicant/appellant Jhilmil

Breckenridge has already given statement that she will not remove the child Master Liam Dorge Breckenridge from the territorial jurisdiction of this court without the permission of this court. These facts prima facie show that the custody of the minor child namely Liam Dorge

Breckenridge is with the applicant/appellant.

Ld. Counsel for the applicant/appellant has submitted that the applicant/appellant has genuine apprehension that the respondent in the Appeal namely Doughlas Breckenridge may not deprive her from the custody of the child Master Liam Dorge Breckenridge forcefully and illegally. Therefore, she has sought for some interim protection till Appeal heard on merit.

I have considered the facts and circumstances of the case and gone through the Trial Court Record and the urgency of the relief which has been sought.

Since the minor child Master Liam Dorge Breckenridge is already in the custody of the applicant/appellant Jhilmil Breckenridge, so it is directed that till the next date of hearing fixed in the Appeal the custody of the minor child Master Liam Dorge Breckenridge with the applicant/appellant Jhilmil Breckenridge (mother) shall not be disturbed except by due process of law and of course subject to the order, if any passed by the Guardian Judge on this issue in the petition under section 7 and 10 of Guardian and Ward Act, because the applicant/appellant has not conveyed any order passed by the Guardian Judge in this regard to this court.

Since the matter is now listed for 11.11.2011 before the concerned court, the matter will be taken up on the said date. keeping in view the nature of the matter, I deem it appropriate to issue notice to the respondent on filing of CONT.CAS(C) 815/2011 Page 14 of 57 PF/RC regarding the Appeal for the date already fixed. File be sent back to the concerned court.” (emphasis supplied)

21. In the aforesaid background, the submission of Mr. Neeraj Kishan Kaul, learned senior counsel for the petitioner is that the respondent has blatantly, deliberately and willfully breached the orders dated 30.09.2010 and 05.04.2011 passed by the learned Guardianship Judge, which clearly acknowledge and recognize the fact that the custody of the child Liam had passed into the hands of the petitioner, and was with the petitioner. The Respondent mis-stated and misrepresented before the Ld. MM as well as before the Ld.ASJ dealing with the DV Act proceedings, that she had the custody of the child Liam, by only producing her own undertaking recorded before the Ld. Guardianship Judge on 09.09.2010, and by suppressing the subsequent proceedings and orders of the Guardianship Court, and in particular the orders/ proceedings dated 30.9.2010 and 05.04.2011. Under the cover of the orders obtained from the learned Metropolitan Magistrate in proceedings under the DV Act, which have been obtained by suppression of the proceedings and orders of the learned Guardianship Judge, the respondent has sought to take away the child Liam from the custody of the petitioner, and into her own custody. Mr. Kaul, therefore, submits that the CONT.CAS(C) 815/2011 Page 15 of 57 orders dated 30.09.2010 and 05.04.2011 stand blatantly and willfully breached by the respondent.

22. He further submits that the conduct of the respondent in not disclosing the proceedings and orders passed in the guardianship case on 30.09.2010 and 05.04.2011, despite the directions of the learned Metropolitan Magistrate dealing with the DV Act complaint, as well as her conduct in not filing the said proceedings of the guardianship case in her appeal under the DV Act before the learned ASJ, clearly tantamount to gross abuse of the process of the Court on account of suppression of the said proceedings; to playing a fraud upon the court, and; also amounts to contempt of court. In this regard, he places reliance on the decision of a Division Bench of this Court in Satish Khosla v. Eli Lilly Ranbaxy Limited & Anr., 71(1998) DLT 1 (DB).

23. Ms. Geeta Luthra, learned senior counsel appearing for the respondent has argued that the orders/proceedings dated 30.09.2010 and 05.04.2011 do not qualify to be termed as “order” as defined in Section 2(14) of the Civil Procedure Code (CPC). She submits that an “order” within the meaning of the CPC mean the formal expression of any decision of a civil court which is not a decree. She submits that the so-called order CONT.CAS(C) 815/2011 Page 16 of 57 dated 30.09.2010 does not contain any decision of the learned Guardianship Judge. In fact, the said so-called order was obtained by the petitioner behind the respondents back by making a self serving statement before the Court. She submits that there was no question of the respondent agreeing to the petitioners claim that he had got the custody of the minor child Liam, as the respondent on the same day, i.e. 30.09.2010 filed her reply in the guardianship proceeding clearly stating that the custody of the child Liam was with her.

24. Ms. Luthra submits that even the so-called order dated 05.04.2011 is not an order within the meaning of Section 2(14) CPC. These proceedings merely record that the parties have agreed that the matter be referred to the Mediation Centre, and the order also records the arrangement arrived at by the Court with regard to visitation rights of the respondent qua the minor children.

25. She submits that even the petitioner admits that the custody of the minor child Liam was with the respondent, and it is precisely for this reason that the petitioner preferred the guardianship petition. She submits that the respondent never ever gave up the custody of her minor child. The respondent continued to have the custody of the minor child Liam CONT.CAS(C) 815/2011 Page 17 of 57 inasmuch, as, she was staying in and out of the matrimonial home, i.e. C-87, Anand Niketan, New Delhi with her children and, in particular, the minor child Liam.

26. In para 13.3 of the guardianship petition, the petitioner himself acknowledges that the respondent left the matrimonial home on 24.08.2010 and had taken with her child Liam. It is an acknowledgment of the fact that the custody of the child Liam was with the respondent, and it is for this reason that the respondent was asked to give an undertaking to the Court that she would not remove the child Liam from the territorial jurisdiction of the Guardianship Court without the permission of the said Court, on 09.09.2010. She further submits that there is no order of any Court divesting the custody of the child Liam from the respondent, and vesting the same with the petitioner.

27. Ms. Luthra submits that the respondent, being the mother of the said minor child, is his natural guardian. She submits that even if the respondent had gone out of town leaving the child Liam with her parents, the same does not mean that the respondent has lost the custody of the minor child Liam. She submits that even a perusal of the order dated 05.04.2011 shows that the respondent had unrestricted access to the matrimonial home, CONT.CAS(C) 815/2011 Page 18 of 57 where the petitioner was residing with the children. In fact, the respondent had preferred an application under Order 7 Rule 11 CPC on 27.11.2010 on the premise that the respondent was living in her matrimonial home with the petitioner and her four children. In response to the aforesaid application, the petitioner admitted that the respondent has been residing at the matrimonial home.

28. She submits that the respondent had preferred an application for directions in December 2010 before the Guardianship Judge, as the petitioner was trying to forcefully divest the custody of the children from the respondent. Reference is also made to the reply filed by the petitioner to said application, wherein the petitioner himself admits that the respondent has access to all the four children. In para 11 of the said reply, the petitioner does not dispute the respondents case that Liam is allowed to meet the respondent, and is allowed to sleep with the respondent. She submits that the respondent had filed a second application under Order 7 Rule 11 CPC in the guardianship proceedings. In his reply to the said application filed in July 2011, the petitioner admitted that the respondent has been residing in the matrimonial home with the children. According to the respondent, the parties are leading a normal life. Reference is made to the averments made CONT.CAS(C) 815/2011 Page 19 of 57 by the respondent in her rejoinder to the second application under Order 7 Rule 11 CPC before the learned Guardianship Judge.

29. Ms. Luthra points out that the conduct of the petitioner himself is not aboveboard, inasmuch, as, the petitioner filed an amended petition under the Guardianship Act in July 2011, wherein the petitioner, without the permission of the Court, introduced an averment in Column 4 as follows: “Custody of minor is with Mr. Douglas Breckenridge. At the time of filing of the petition Liam was in the illegal possession of the Respondent. However, on 30.09.2010 the custody of minor Liam has been reverted to the Petitioner”.

30. Ms. Luthra submits that the respondent, being the mother, is entitled to protect her custody of the children under Section 21 of the DV Act. She defends the averments made by the respondent in her petition in para 68 under Section 12 of the DV Act. In support of her submissions aforesaid, she places reliance on the following decisions: i) Jaswant Sugar Mills Ltd., Meerut v. Lakshmichand & Ors., (1963) Supp. SCR 242;

ii) Dr. Manju Varma v. State of U.P. & Ors., 2004 (9) Scale 463;

iii) Devarkonda Edl. Society V. All India Council for Technical Education & Ors., AIR 1997 A.P. 389; and

CONT.CAS(C) 815/2011 Page 20 of 57 iv) Vidyacharan Shukla v. Khubchand Baghel & Ors., AIR 1964 SC 1099.

31. Ms. Luthra submits that the respondent, in any event, did not understand the proceedings of 30.09.2010 and 05.04.2011 before the learned Guardianship Judge as “orders” within the meaning of Section 2(14) CPC. In these circumstances, there is no contempt made out, on account of the alleged suppression of the so-called orders from the Courts dealing with the DV Act proceedings. In support of this submission, she places reliance on the following decisions:

i) Dinesh Kumar Gupta v. United India Insurance Co. Ltd. & Ors., 2010 (10) Scale 647;

ii) Anshuman Sharma v. Manika Jain, 114 (2004) DLT 47; iii) Dr. Ashish Ranjan v. Dr. Anupama Tandon,

2010 (12) Scale 577.

32. Ms.Luthra has also sought to make submissions that the petitioner abused the respondent physically, sexually and mentally, and was responsible for wrong treatment of her bi-polar disorder. These allegations, in my view, are of no relevance to these proceedings and are, therefore, not being gone into.

CONT.CAS(C) 815/2011 Page 21 of 57

33. In his rejoinder, Mr. Kaul has submitted that the entire submission of the respondent fails to take note of the manner in which “civil contempt” has been defined under the Contempt of Courts Act. Civil contempt is defined as:

” (b) “Civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court”. He, therefore, submits that civil contempt is defined very widely to not only take within its ambit willful disobedience to decrees, directions and orders, but also other processes of a Court.

34. Mr. Kaul submits that the order dated 30.09.2010 is, even otherwise, an “order” within the definition of that expression contained in Section 2(14) of the CPC. He submits that merely because the respondents counsel chose not to appear before the learned Guardianship Judge on 30.09.2010, when the matter was taken up, would not mean that the proceedings held before the learned Guardianship Judge, and recorded by him, do not amount to an order. He submits that the petitioner had moved an application under Section 12 of the Guardians and Wards Act to seek interim custody of the minor child Liam. On 30.09.2010, the petitioner had CONT.CAS(C) 815/2011 Page 22 of 57 appeared before the learned Guardianship Judge with the child Liam, and the Court saw for itself that the custody of the said minor child was with the petitioner. Mr. Kaul submits that the Court recorded the petitioners submissions and duly considered the same and also appreciated the factual position placed before it. Thereafter, the learned Guardianship Judge gave his decision that, keeping in view the fact that the child whose custody was sought by the petitioner has already come in his custody, the prayer made in the application under Section 12 of the Guardians and Wards Act stands satisfied. In the light of the aforesaid position, the learned Judge disposed of the petitioners application under Section 12, as aforesaid.

35. Mr. Kaul, therefore, submits that the order dated 30.09.2010 has all the ingredients of an order under Section 2(14) of the CPC. Mr. Kaul submits that it is not necessary that the formal expression of the decision of the civil court has necessarily to pertain to a final decision. He submits that the respondent did not either seek review of the said order, or challenge it before a higher court. The said order, in so far as it deals with the aspect of interim custody of the minor child Liam, has attained finality, until and unless it is disturbed/ changed due to material change of circumstances. CONT.CAS(C) 815/2011 Page 23 of 57

36. With a view to counter the allegations of the respondent regarding her alleged ill treatment by the petitioner, Mr. Kaul has also drawn the attention of the Court to the email communication sent by the father of the respondent to the petitioner on 07.08.2010, wherein he expressed the apprehension that the respondent may take Liam with her to U.K. The respondent’s father himself advised the petitioner to keep Liam’s passport and that of the other boys too, under lock and key. Reference is also made to email communications allegedly exchanged between the respondent and her alleged paramour, to submit that the respondent, in any event, is not fit to retain even temporary custody of the minor children on account of her alleged adulterous relationships.

37. I first proceed to consider the submission of the respondent that the proceedings of 30.09.2010 and 05.04.2011 recorded before the learned Guardianship Judge do not tantamount to an “order” within the meaning of Section 2(14) C.P.C. Section 2(14) C.P.C defines “an order” to mean “the formal expression of any decision of a Civil Court which is not a decree”. “Decree” has been defined inter alia, to mean “the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either primary or final”. The CONT.CAS(C) 815/2011 Page 24 of 57 distinction between an “order” and a “decree”, therefore, is that, whereas a decree is the result of an “adjudication”, an order is the “expression of any decision” of a Civil Court. Moreover, while a decree conclusively determines the rights of the parties with regard to or any of the matters in controversy in the suit, as regards the Court expressing it, an order may not be a conclusive determination of the rights of the parties, as regards the Court formally expressing its decision.

38. Reliance placed by the learned senior counsel for the respondent on Jaswant Sugar Mills Limited (supra), Dr.Manju Varma (supra), Devara Konda Educational Society (supra) and Vidya Charan Shukla (supra) does not advance the submission of learned senior counsel for the respondent that the orders/proceedings dated 30.09.2010 and 05.04.2011 do not amount to orders. Jaswant Sugar Mills Limited (supra) was a case wherein the Supreme Court was examining the issue whether an appeal may be entertained in exercise of powers under Article 136 of the Constitution of India against the direction of a Conciliation Officer issued in disposing of an application under Clause 29 of the order promulgated by the Government of Uttar Pradesh under the U.P. Industrial Disputes Act, 1947, when an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 1950. In that context the Supreme Court examined CONT.CAS(C) 815/2011 Page 25 of 57 the issue as to what constitutes a decision judicial. The criteria that must be satisfied to make a decision judicial is stated as follows:- “(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rule;

(2) it declares rights or imposes upon parties obligations affecting their civil rights and

(3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on question of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.”

39. There can be no manner of doubt that the proceedings before the learned Guardianship Judge are judicial proceedings. Therefore, the decision in Jaswant Sugar Mills is not relevant for the present purpose. Dr.Manju Varma (supra) merely restates the aforesaid criteria laid down in Jaswant Sugar Mills Limited. In Deverakonda (supra) the Andhra Pradesh High Court held that while rendering its decision under Section 23 of the All India Council for Technical Education (AICTE) Act , 1987, the AICTE acts as a quasi judicial authority. It is required to act objectively, judicially and judiciously. In that context the High Court observed in Para 27 as under:- CONT.CAS(C) 815/2011 Page 26 of 57 “Normally speaking, ‘decision’ means “making up one’s mind, may be even personal decisions leading to real and true conclusions. Actually it is a judgment based on conclusions” (Page 309 of Oxford Advanced Learner’s-Dictionary supra). As a verb, ‘decide’ means to “to give a judgment in a case”, and as a noun ‘decision’ means “Judgment in a Civil Court, making up one’s mind to do something, act of coming to a decision, it is a decision making process” (Page 67 of Dictionary of Law by P.H; ColI in supra). In the legal sense of the meaning; a ‘decision’ is a “determination arrived at after consideration of facts and in the legal context of law, a popular rather than technical or legal word, a comprehensive: term having, no fixed, legal meaning. It may be employed as referring to- ministerial acts as well as to those that are judicial or of a judicial character.”

40. Once again, I do not see how the aforesaid observations of the Andhra Pradesh High Court advance the respondent’s submission with regard to the nature/character of the two orders dated 30.09.2010 and 05.04.2011 passed by the learned Guardianship Judge. In Vidya Charan Shukla the Supreme Court was, inter alia, examining the manner in which an order may be framed by a Tribunal under Section 98 or Section 99 of the Representation of the People Act, 1951. It was held that the Election Tribunal may issue two documents – one embodying the reasons for the decision and the other, the formal expression of its decision; the former will be its judgment and the later its order. It may issue both in the same document in which case the CONT.CAS(C) 815/2011 Page 27 of 57 judgment as well as the order is embodied in the same document. I fail to appreciate how this decision has any relevance to the case at hand.

41. Keeping in mind the aforesaid position, a perusal of the order/proceedings dated 30.09.2010 leaves no manner of doubt that the same qualifies as an “order” within the meaning of Section 2(14) of the C.P.C. The learned Guardianship Judge gave its decision on the petitioner’s application under Section 12 of the Guardian and Wards Act while passing the said order, after appreciating the factual position presented before him that the child Liam was in fact in his custody on the said date. The application under Section 12 of the Guardian and Wards Act had been preferred to seek interim custody of the said child from the respondent. As the said interim custody had, by turn of events, vested in the petitioner, the prayer made in the interim application under Section 12 of the Guardian and Wards Act stood satisfied and, consequently, that application was disposed of by the learned Guardianship Judge after considering all the aforesaid aspects. Merely because the order was passed in the absence of the respondent or her representative, the said order does not cease to be a “decision” of the Court. By this decision, the Court recognized the factual position that the interim custody of the child Liam had passed into the hands of the petitioner. The learned Guardianship Judge has recorded his reason CONT.CAS(C) 815/2011 Page 28 of 57 for disposing of the application under Section 12 of the Guardian and Wards Act.

42. So far as the proceedings/order dated 05.04.2011 is concerned, the same in my view also tantamounts to an “order” within the meaning of Section 2(14) of the C.P.C. Firstly, the same has been passed after hearing the parties. Secondly, the same contains a decision in so far as the aspect of the visitation rights of the respondent are concerned in relation to the minor children. This decision was made without prejudice to the rights and contentions of both the parties, since the parties had expressed their readiness and willingness to settle their disputes amicably and for that purpose to appear before the Judge In-Charge, Mediation Centre, Delhi High Court.

43. The Gujarat High Court in Vijaya Park Co-operative Group Housing Society V. Trivedi Bhartiben w/o. S.S.Trivedi & Ors., (2003) 1 GLR 190, rejected a similar contention that because the trial Court had not given any reason in its order rejecting an application under Order 1 Rule 10 read with Order 6 Rule 17 C.P.C., the same did not amount to an order. The High Court held that while detailed reasons have not been assigned by the learned Judge while dismissing the application, the learned trial Judge had CONT.CAS(C) 815/2011 Page 29 of 57 indicated his reasons by observing that by seeking amendment in the cause title of a plaint, a new person is sought to be introduced as plaintiff in place of the original plaintiff and therefore, the amendment was not competent. The Gujarat High Court held that whether, or not, the High Court may agree with the aforesaid reasons of the trial Court, it cannot be said that the order has been passed without any reasons.

44. In the present case as well, the order dated 05.04.2011 does not explicitly state the reasons for the arrangement worked out by the Court with respect to the visitation rights of the respondent in relation to the minor children. However, that, by itself, would not reduce the force of the said proceeding/order as the said order contains a binding decision, which the learned Guardianship Judge directed, shall continue till further orders.

45. In any event, whether or not the proceedings/orders dated 30.09.2010 and 05.04.2011 constitute an “order” within the meaning of Section 2(14) C.P.C, or not, is of no avail to the respondent. As pointed out by Mr. Kaul, civil contempt has been broadly defined to mean “willful disobedience of decree, judgment, direction, order writ or other process of a Court……………” (emphasis supplied). The proceedings of 30.09.2010 and 05.04.2011, even if assumed for the sake of argument as not constituting CONT.CAS(C) 815/2011 Page 30 of 57 “orders”, within the meaning of Section 2(14) of the C.P.C, certainly are processes of a Court inasmuch, as, they record the proceedings of the learned Guardianship Court in the petitioner’s guardianship petition before it.

46. When the matter was finally heard on 20.12.2011, I had directed the counsel for the respondent, who represented the respondent in proceedings under the D.V. Act to file an affidavit disclosing whether, or not, the said counsel for the respondent was aware of the passing of the orders dated 30.09.2010 and 05.04.2011 in the Guardianship proceedings when the proceedings under the D.V. Act were filed initially, as well as at the appellate stage. An affidavit was also called from the respondent, disclosing whether she had made her counsel aware of the said orders of the Guardianship Court before filing the petition under the D.V Act, or at any time thereafter.

47. Two affidavits dated 28.12.2011 have been filed, one, of the respondent and the other of Mr. Sashank Kumar Lal, Advocate.

48. Mr. Sashank Kumar Lal, in his affidavit has stated that the orders dated 30.09.2010 and 05.04.2011 were not in his knowledge, and the respondent had not instructed him about these orders. He has stated that due CONT.CAS(C) 815/2011 Page 31 of 57 to absence of instructions and due to bona fide belief, he did not place the orders dated 30.09.2010 and 05.04.2011 before the learned M.M and the Ld. ASJ at the time of filing and hearing of the complaint under the D.V. Act and the appeal arising therefrom.

49. So far as the respondent is concerned, she has filed a detailed affidavit which goes far beyond the direction issued by the Court. In this affidavit, the respondent has, for the first time, asserted that she was not at all aware of the order dated 30.09.2010 when she preferred the complaint under the D.V. Act and the appeal arising therefrom. She states in para 15 of this affidavit that “I did not give any instructions to my present counsel with regard to orders dated 30.09.2010 and 05.04.2011. Even otherwise, I had no knowledge of order dated 30.09.2010″. She states that she did not produce the orders dated 30.09.2010 and 05.04.2011 before the learned M.M, and before the learned Additional Sessions Judge, as she did not have copies of the said orders. She has also sought to tender an unconditional apology “for any act which may have caused hindrance to the administration of justice”. This stand taken by the respondent, taken in her affidavit dated 28.12.2011, is strikingly at variance from her stand taken in her reply filed to the contempt petition.

CONT.CAS(C) 815/2011 Page 32 of 57

50. I have perused the entire reply filed by the respondent and there is not an iota of averment made by her in the said detailed reply to state that she was not aware of the order dated 30.09.2010 passed by the learned Guardianship Judge at the time of filing of her complaint under the D.V. Act, and the appeal arising therefrom. All that she says is that, firstly, the order dated 30.09.2010 was obtained behind her back and, secondly, that the said order was passed on a self serving statement made by the petitioner. Thirdly, she further states that it is not an “order” within the meaning of Section 2(14) of the C.P.C. In this regard, I consider it appropriate to set out paragraphs 12, 14 and the relevant extracts of para 30 of the contempt petition, and the corresponding reply given by the respondent herein below:- Petitioner’s averment

“12. On 30.09.2010 the said child was reverted to the custody of the petitioner as the respondent had left for UK to meet her paramour and could not take the child with her as apprehended due to her undertaking to the Guardian Judge on 09.09.2010. The said fact was duly recorded by the Learned Guardian Judge a copy of which is annexed herewith as Annexure-D. In sum and substance, the said order clearly held that as the custody of the said child had already come in the hands of the petitioner therefore, the relief sought in the interim application under Section 12 of the said Act stood satisfied and the application was accordingly disposed of. A copy of the said interim application under Section 12 of the said order is annexed hereto as Annexure-E.”

CONT.CAS(C) 815/2011 Page 33 of 57 Reply to the above para

“12. That the contents of para 12 of the petition are wrong and hence denied. It is denied that on 30.09.2010 or before that Liam was reverted to the custody of the petitioner. At the outset it is denied that the child was reverted to the custody of the petitioner vide order dated 30.09.2010. The said order is not an order in terms of Section 2 (14) of the Civil Procedure Code as the same has been passed in the absence of the respondent and not on merits. The said order is based on self serving statement of the petitioner which cannot be interpreted in any manner through which it can be said that the Court has granted custody to the petitioner. The circumstance under which the said order has been passed has been explained, and hence the same are not repeated for the sake of brevity.” Petitioner’s averment

14. That accordingly, the said orders were governing the custody and visitation with respect to the said child qua the parties. The said orders are still subsisting and have not been either vacated or modified by either the learned Guardian Judge or any appellate Court.

Reply to the above para

“14-15. That the contents of para 14 and 15 of the petition are wrong and hence denied. It is submitted that the orders governing the custody and visitation of the child in question are still in subsistence. At the outset it is submitted that the petitioner is trying to mislead this Hon’ble Court by intentionally making contemptuous statement as the Ld. Guardian Judge has not passed any speaking order in respect of the custody and visitation of the minor child. The petitioner is intentionally interpreting the orders dated 30.9.10 and 5.4.11 passed by the Ld. Guardian Court in order to mislead this Hon’ble Court in order to get an order which he failed to get from the Ld. Guardian Judge.”

CONT.CAS(C) 815/2011 Page 34 of 57 Extract of Petitioner’s averment

“30. A bare perusal of the said petition and the application would reveal that an off the cuff reference has been made with respect to the pendency of the petition filed by the petitioner before the Guardian Judge under Section 7, 10 and 25 of the said Act in para 68 of the aforesaid application. There is not even whisper about the passing of the said order nor has a copy of the said order been annexed to the petition. ….. ….. ….. …..” Reply to the above para

“30. The contents of para 30 of the petition are a matter of record and need no reply. However at the outset, it is submitted that the respondent had disclosed and placed on record the undertaking given by her on 9.9.2010.”

51. Pertinently, the respondent in her reply does not specifically deal with the “grounds” urged by the petitioner in the contempt petition, wherein too, the petitioner has made categorical assertions that the respondent has suppressed, concealed and mis-stated the material facts and documents, namely, the orders dated 30.09.2010and 05.04.2011 passed by the learned Guardianship Judge while pursuing the proceedings under the D.V. Act before the learned M.M. and the learned ASJ.

52. The stand now taken by the respondent in her affidavit, filed in response to the order dated 20.12.2011 that she was not aware of the order dated 30.09.2010 therefore, cannot be accepted. This is clearly an afterthought on the part of the respondent and an attempt on her part to get CONT.CAS(C) 815/2011 Page 35 of 57 out of the tight spot that she finds herself in, because of her acts of suppression and concealment of the orders dated 30.09.2010 and 05.04.2011 from the concerned Courts dealing with the D.V Act proceedings. This stand is now being taken for the first time after the close of the hearing, which means that the petitioner has no occasion or opportunity to say anything in the matter. Moreover, this stand is belied by the fact that in the amended guardianship petition, the petitioner had stated that “….. On 30.09.2010, the custody of the minor Liam has been reverted to the petitioner”. This amended petition was filed by the petitioner some time around 13.08.2011, whereas the D.V. Act proceedings were launched by the respondent only in October, 2011. From the said averment, it is clear that the respondent was put to notice that the petitioner claimed himself to be in actual custody on and from 30.09.2010. Pertinently, in relation to the order dated 05.04.2011, the respondent has no such explanation to offer, as she has taken benefit of the said order. However, even this order was suppressed and concealed from the learned M.M and the learned ASJ dealing with the D.V Act proceedings, evidently for the reason that this order too would have betrayed the fact that it was the respondent who was being granted visitation rights, and not the petitioner. This obviously would have meant that the actual custody of the children, including the child Liam was with the CONT.CAS(C) 815/2011 Page 36 of 57 petitioner and not the respondent. If this order had been produced before the Ld. MM and the Ld. ASJ in the D.V. Act proceedings, the claim of the respondent- that she has custody of the child Liam, would have been belied. In the light of the aforesaid discussion, I have no hesitation in rejecting the affidavit now filed by the respondent on 28.12.2011 as per the direction of the Court. In my view, the same further compounds the dubious conduct of the respondent in trying to play hide and seek with the courts.

53. Turning to the examination of the affidavit filed by Shri Sashank Kumar Lal Advocate, I find that his conduct too does not appear to be completely beyond suspicion. He discloses that he was engaged by the respondent as her counsel in proceedings before the Guardianship Judge in May, 2011. This means that he had access to the case file of the proceedings pending before the learned Guardianship Judge. Access not only to the counsels file but even to the Court record. He would have been aware of the fact that the respondent had moved an application in December, 2010 to seek access to the children, meaning thereby that the respondent was actually not having custody of any of the four children, including the child Liam.

CONT.CAS(C) 815/2011 Page 37 of 57

54. I have called for the Guardianship case record from the family court where the same is pending. It is seen that the Vakalatnama has been filed by Mr. Jatin Sehgal and the Mr. Jai Kush Hoon on 20.05.2011. In fact, Mr. Shashank Kumar Lal has not filed any Vakalatnama. I have also called the inspection application register. The inspection application register does not shows that an application for inspection was made by the aforesaid newly engaged counsel upto 01.07.2011, when the case was transferred to the Court of the Principal Judge, Family Court. The case was assigned to the Court of Smt. Renu Bhatnagar, Judge 2, Family Court, Saket, where it is now pending. It appears that no inspection application register is being maintained in her court. An intimation to this effect has been received from her.

55. Pertinently the proceedings under the D.V.Act were initiated in October, 2011 i.e., five months after the aforesaid counsels were engaged by the respondent as her counsel in the guardianship proceedings. I may note that Mr. Shashank Kumar Lal, Mr. Jatin Sehgal and Mr. Jai Kush Hoon share the same chamber, i.e. 109 Lawyers Chambers, Delhi High Court, New Delhi, and while Mr. Shashank Lal has appeared in the Guardianship proceedings, Mr. Jatin Sehgal has appeared in the DV Act proceedings. Mr. Shashank Lal has inspected the Guardianship proceedings on 11.01.2012. It CONT.CAS(C) 815/2011 Page 38 of 57 is, therefore, clear that they work jointly on matters and belong to the same chamber.

56. It is also pertinent to note that when the D.V. Act proceedings were drafted, in Para 68 the same counsel made ambiguous and unclear averments. It is even more pertinent to note that when the D.V. Act proceedings were taken up by the learned M.M. on 13.10.2011, she specifically raised the issue with regard to the ambiguous averments made in Para 68 of the petition, whereupon the counsel for the complainant sought time to file an amended petition and also to file orders passed by the Guardianship Court. Despite the aforesaid, the counsel did not clearly amend the petition to make a complete disclosure of the orders passed by the learned Guardianship Judge, including the orders dated 30.09.2010 and 05.04.2011. He also did not file these orders before the learned Magistrate dealing with the D.V. Act proceedings. Inconsequential amendments were carried out in Para 68 of the petition which concealed the aforesaid orders of the Guardianship Judge.

57. It is not for a litigant to spoon feed his counsel with regard to earlier proceedings undertaken before a court, once he is engaged as the counsel in a pending case, even if it were to be assumed that the litigant may be either CONT.CAS(C) 815/2011 Page 39 of 57 ignorant, or may not deliberately disclose the earlier proceedings undertaken in the case to his counsel. It becomes the obligation of the counsel who accepts the responsibility from a litigant, in an already pending proceeding, or when he is engaged to file a fresh proceeding, to acquaint himself with all that has transpired on the record. It is clear that Mr. Sashank Kumar Lal was acting as the respondent’s counsel in the guardianship proceedings since May 2011. It was his obligation to inspect the orders passed in the guardianship proceedings to acquaint himself fully with all such proceedings, particularly when he was preparing another proceeding under the DV Act, to claim an overlapping relief. No counsel worth his salt can proceed to deal with a case in which he is engaged, without fully acquainting himself of the orders and proceedings in the case which may have already been undertaken. Mr. Sashank Kumar Lal could not have assumed that the custody of the minor child Liam was with the respondent in the face of: (i) the fact that in the amended guardianship petition the petitioner had himself categorically stated that since 30.09.2010 he had the custody of the minor child Liam; (ii) the fact that the respondent did not actually have the custody of the minor child Liam, ever since the engagement of the counsel Mr. Sashank Kumar Lal/Mr. Jatin Sehgal/Mr. Jai Kush Hoon in May, 2011; (iii) the fact that after the passing of the order CONT.CAS(C) 815/2011 Page 40 of 57 dated 13.10.2011 by the learned M.M in the D.V. Act proceedings, wherein the Court had raised the issue about the ambiguous averments made in Para 68 of the complaint, the counsel had sought time to file the amended petition as also to file orders passed by the guardianship court in the guardianship proceedings.

58. It is not explained, why Mr. Sashank Kumar Lal did not inspect the record of the case to obtain the knowledge and copies of the order dated 30.09.2010 and 05.04.2011, in spite of taking time from the learned Magistrate to file the same before him. This omission on his part is suggesting of the fact that he had copies of these orders in his record.

59. If the claim of the respondent’s counsel Mr. Sashank Kumar Lal, that he was not aware of the orders dated 30.09.2010 and 04.10.2011, were to be accepted, for the sake of argument, the only other conclusion one can draw is that he has acted with gross negligence, which is unbecoming as an officer of this Court. Shri Sashank Kumar Lal in his affidavit relies upon the prayer made by the petitioner in his amended guardianship petition which was to the effect that he seeks a direction to the respondent to hand over the custody of the minor child to the petitioner. However, he conveniently omits to take note of the averment made in the amended petition to the effect that CONT.CAS(C) 815/2011 Page 41 of 57 the custody of the child Liam, since 30.09.2010, was with the petitioner. As a counsel Shri Sashank Kumar Lal should have known that interim custody, or defacto custody, of the minor child is one thing, whereas permanent custody or dejure custody- upon adjudication of the relevant issues by the guardianship court, is quite another thing. The prayer made in the amended guardianship petition was to seek the permanent custody of the child Liam.

60. I have great difficulty in accepting the affidavit of Shri Sashank Kumar Lal, Advocate and to swallow his solemn averment that he had no knowledge of either the order dated 30.09.2010 or the order dated 05.04.2011 passed in the guardianship proceedings when he prepared, presented and pursued the D.V. Act proceedings.

61. The two orders dated 30.09.2010 and 05.04.2011 were highly relevant and material, and ought to have been placed before the learned M.M and learned ASJ dealing with the D.V. Act proceedings. A material fact would mean a fact which is material for the purpose of determination of the lis. The logical corollary of this is, whether , the same was material for grant or denial of the relief (See Arunima Baruah vs. UOI: (2007)6 SCC 120). Had the learned M.M and the learned ASJ dealing with the D.V. Act proceedings been made aware of the aforesaid two orders passed by the learned CONT.CAS(C) 815/2011 Page 42 of 57 Guardianship Judge there, obviously, would have been no occasion for either of them to have passed any orders restraining the petitioner from removing the child Liam from within the jurisdiction of the Court, or directing that the custody of the child Liam (falsely claimed to be with the respondent) shall not be disturbed except by due process of law. A perusal of the orders passed by the learned M.M. and the learned ASJ dealing with the D.V. Act proceedings clearly shows that by calculatedly producing the statement made by the respondent before the learned Guardianship Judge on 09.09.2010 – to the effect that she shall not remove the child from within the jurisdiction of the Guardianship Court without the permission of the Court, she sought to mislead the learned M.M as well as the learned ASJ that she had actual custody of the child Liam. This is clearly recorded in the order passed by the learned ASJ on 19.10.2011. As noticed hereinabove, he observes as under:-

“……………In the proceedings before the Guardian Judge the applicant/appellant Jhilmil Breckenridge has already given statement that she will not remove the child Master Liam Dorge Breckenridge from the territorial jurisdiction of this court without the permission of this court. These facts prima facie show that the custody of the minor child namely Liam Dorge Breckenridge is with the applicant/appellant. ……………………………..

Since the minor child Master Liam Dorge Breckenridge is already in the custody of the applicant/appellant Jhilmil CONT.CAS(C) 815/2011 Page 43 of 57 Breckenridge, so it is directed that till the next date of hearing fixed in the Appeal the custody of the minor child Master Liam Dorge Breckenridge with the applicant/appellant Jhilmil Breckenridge (mother) shall not be disturbed except by due process of law and of course subject to the order, if any passed by the Guardian Judge on this issue in the petition under section 7 and 10 of Guardian and Ward Act, because the applicant/appellant has not conveyed any order passed by the Guardian Judge in this regard to this court.” (emphasis supplied).

62. As aforesaid, it is not explained by the respondent or her counsel as to why, despite the learned M.M requiring the production of the orders passed in the guardianship proceedings, and despite a statement being made that the respondent shall produce the orders passed by the Guardianship Court, the same were not produced. Even the order passed by the learned ASJ discloses that he was not satisfied with the conduct of the respondent in not producing the orders passed by the Guardianship Court, and that is why he specifically observed in his order dated 19.10.2011 that the order passed by him is subject to orders, if any, passed by the Guardianship Judge “because the applicant/appellant has not conveyed any order passed by the Guardianship Judge in this regard to this Court”.

63. From the above discussion it is clear that the respondent has deliberately and willfully sought to breach and disobey the orders dated 30.09.2010 and 05.04.2011 by concealing the said orders while filing the CONT.CAS(C) 815/2011 Page 44 of 57 proceedings under the D.V. Act before the learned M.M. and the appeal proceedings before the learned ASJ, with a view to legitimize her conduct of taking away the custody of the child Liam from the petitioner under the garb of the orders obtained in those proceedings by sheer concealment and deliberate and calculated mis-statements made by her.

64. I had occasion to deal with another case involving suppression of relevant and material facts by a party while preferring a writ petition in Ayodhya Devi vs. DDA & Anr., 156(2009) DLT 346. Unfortunately, like in the present case, in that case too, the conduct of the counsels was not completely above board, and they appeared to have played a role in the suppression and concealment of relevant facts. In the course of that decision, I had occasion to consider the judgment of the Division Bench of this Court in Satish Khosla vs. M/s. Eli Lilly Ranbaxy Ltd. & Anr.: Vol.71 (1998) DLT 1 (Division Bench) which in turn deals with other relevant judgments including those of the Supreme Court. I consider it apposite to quote relevant extracts from the said decision:-

“21. In Satish Khosla v. M/s Eli Lilly Ranbaxy Ltd. & Anr. 71 (1998) DLT 1 (DB), a Division Bench of this Court dealt with a similar situation. The respondent preferred an earlier suit being Suit No.3064/1996. It sought ex parte interim orders to restrain the appellant from giving on hire the lawns, adjoining the cottage in the tenancy of the respondent, for CONT.CAS(C) 815/2011 Page 45 of 57 marriages and private parties. The respondent failed to obtain any ex parte orders. Thereafter, the respondent preferred a subsequent suit, being Suit No.261/1997 making a similar prayer for interim relief. On 06.02.1997 the learned Single Judge passed an ex parte ad interim order of injunction against the appellant. The appellant preferred an appeal before the Division Bench and also filed a contempt petition for initiating criminal contempt proceedings against the respondents for having intentionally and deliberately filing the proceedings and application being Suit No.261/1997 and I.A. No.1124/1997. After comparing the various averments made in the two suits, the Court considered the issue whether it was obligatory for the respondent to have disclosed to the Court in the subsequent suit, the earlier suit filed by it and the factum that the Court had not granted any stay in favour of the respondent in the earlier suit. The Court referred to S.P. Chengalvaraya Naidu v. Jagannath & Ors. AIR 1994 SC 853, wherein the Supreme Court held that the Courts of Law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. “It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party.”

22. The Division Bench held that:

“……………..by withholding the plaint and the application in the earlier suit from the court and by not disclosing to the Court about the

proceedings in the earlier suit and the stay having not been granted to it, the plaintiff/respondent had tried to get an advantage from the Court and was, therefore, guilty of playing fraud on the Court as well as on the respondent.”

CONT.CAS(C) 815/2011 Page 46 of 57

23. The Division Bench relied upon the following passage from S.P. Chengalvaraya Naidu (supra):

“……………………… We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to Court with a true case and

prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of Law are meant for imparting justice between the parties. One who comes to the Court, must come with clean

hands. We are constrained to say that more often

than not, process of the Court is being abused.

Property-grabbers, tax-evaders, bank- loan-

dodgers and other unscrupulous persons from all

walks of life find the Court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on false- hood, has no right to approach the Court. He can be summarily thrown out at any

stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents

executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the

opposite party.”

24. The Division Bench further observed that:

“………………… A party must come to the Court with clean hands and must disclose all the relevant facts which may result in appreciating the rival

contentions of the parties. In our view, a litigant, who approaches the Court, must produce all the

documents which are relevant to the litigation and he must also disclose to the court about the

CONT.CAS(C) 815/2011 Page 47 of 57 pendency of any earlier litigation between the part is and the result thereof. …………..It was only after 20th January, 1997 when the case was

adjourned to May, 1997 that the respondent filed

the second suit and though in one of the

paragraphs it is mentioned that it had filed an

earlier suit for injunction, however, it did not

disclose to the Court either in the plaint or in the application as to what had transpired in the Court on the dates when the said suit was fixed nor it was disclosed to the Court that injunction has not been granted in its favor by the Court and the relief

claimed in the application in the earlier suit was almost similar to the relief which had been claimed in the subsequent suit. In our opinion, it was

obligatory upon the respondent to disclose to the Court that in the application filed in the earlier suit a similar relief had been claimed, however, the Court had not granted the said relief. In our view, if these facts were before the Court on February 6, 1997 when the second suit came up for hearing

before it, may be Hon’ble the Single Judge was

persuaded not to grant any exparte stay in favor of the respondent. ……………… We are, therefore, of the opinion that the respondent has not come to the Court with clean hands and has also suppressed

material facts from the Court with a view to gain advantage in the second suit. This in our view is clearly over-reaching the Court.”

25. On the aspect of role of the counsel for the respondent, the Division Bench held that:

“As held by the Supreme Court in T.

Arivandandam Vs. T.V. Satyapat and Another,

AIR 1977 SC 2421, the pathology of litigative

addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of

parties to launch frivolous and vexatious cases. “It CONT.CAS(C) 815/2011 Page 48 of 57 may be a valuable contribution to the cause of

justice if Counsel screen wholly fraudulent and

frivolous litigation refusing to be beguiled by

dubious clients. And remembering that an Advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of

India, we hope will activate this obligation. We are constrained to make these observations and hope

that the co-operation of the Bar will be readily

forthcoming to the beach for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain

litigation is the gullible grant of ex-parte orders tempts gamblers in litigation into easy Courts. A Judge who succumbs to ex-parte pressure in

unmerited cases helps devalue the judicial

process.” 20. We are of the opinion that the above noted passage of the aforesaid judgment in T.

Arivandandam Vs. T.V. Satyapal’s case is fully

applicable to the facts and circumstances of the

present case. Having not succeeded in getting stay in Suit No. 3064/96, in our view, the Lawyer should have refused to move an application for stay in the second suit.”

26. The Division Bench held that the respondents were guilty of contempt and that they had made an attempt to overreach the Court by playing a fraud upon the Court and the opposite party. The respondent was, therefore, non suited in respect of the subsequent suit and was warned to be more careful in future. To the same effect is the decision of this Court in Holy Health and Educational Society (Regd.) v. Delhi Development Authority 80 (1999) DLT 207.

Xx xx xx xx xx xx

CONT.CAS(C) 815/2011 Page 49 of 57

32. In T. Arivandandan v. T.V. Satyapal (1977) 4 SCC 467, the Supreme Court cautioned lawyers by observing that “It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions.” Unfortunately, I regret to observe that the counsels for the petitioners have not heeded to the aforesaid advice of the Supreme Court.

33. The facts of this case compel me to take note of what the Supreme Court had the occasion to observe in Sanjiv Datta, Dy. Secretary, Ministry of Information & Broadcasting, In re v. (1995) 3 SCC 619:

“20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by the its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligential of the society and as a responsible citizen, the lawyer has to conduct himself as a

model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tiredness role played by the

stalwarts in the profession to strengthen them. They took their profession seriously and practised it with CONT.CAS(C) 815/2011 Page 50 of 57 dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the

members of the profession to introspect and take

the corrective steps in time and also spare the

courts the unpleasant duty. We say no more.

Need I say more?”.

65. The Supreme Court in A.V. Pappaya Sastry & Anr. Vs. Govt. of A.P & Ors., (2007) 4 SCC 221 has held that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Such a judgment, decree or order which is obtained by playing a fraud on court or on Tribunal or authority is a nullity and non-est in the eyes of law. The Court observed that fraud and justice cannot dwell together, and fraud and deceit ought to benefit none. In Para 26 the Supreme Court observed as under:-

CONT.CAS(C) 815/2011 Page 51 of 57 “26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants”.

66. It is evident that the respondent, seemingly with the aid and advice of her counsel had sought to mislead the courts dealing with the D.V. Act proceedings by suppressing material facts and orders passed by the learned Guardianship Judge with a view to gain advantage in the proceedings under the D.V. Act. It is clear that the respondent sought to overreach the Guardianship Court, and the orders passed by the said Court. The conduct of the respondent, seemingly aided and supported by conduct of her counsel, clearly tantamounted to playing a fraud upon the Court dealing with the D.V. Act proceedings as well as upon the petitioner. The respondent had abused the process of the Court by filing the D.V. Act proceedings with concealment of the orders, and proceedings already passed and undertaken before the learned Guardianship Judge. This concealment was calculated to hamper the due course of justice i.e to interfere with the order dated 30.09.2010 passed by the learned Guardianship Judge. CONT.CAS(C) 815/2011 Page 52 of 57

67. The respondent has made a mockery of the judicial process that undermines the dignity of the Court and the majesty of law. The conduct of the respondent tends to bring the authority and administration of law into disrespect and disregard. It seriously interferes with the rights of the petitioner. Abuse of the process of Court calculated to hamper the due course of judicial proceedings or the orderly administration of justice tantamount to contempt of Court (see Advocate General, State of Bihar V. Madhya Pradesh Khair Industries, (1980) 3 SCC 311 and Delhi Development Authority V. Skipper Construction & Anr, JT 1995(2) SC 391). Accordingly, the respondent is clearly guilty of contempt of Court.

68. The respondent cannot be heard in these proceedings unless she purges herself of the contempt so committed by her by forthwith placing the child Liam in the custody of the petitioner. As aforesaid, the proceedings launched under the D.V. Act are tainted by fraud, suppression and concealment and the orders passed therein by the learned M.M and learned ASJ are therefore a nullity.

69. So far as the conduct of the respondent’s counsel is concerned, the same is highly suspicious. If he is given the benefit of the doubt, his conduct is highly negligent and unprofessional, and the same deserves to be CONT.CAS(C) 815/2011 Page 53 of 57 deprecated in the strongest terms. It is such conduct of counsel which brings the noble legal profession into disrepute and erodes the confidence of the litigating public and the courts in the professionals practicing the legal profession. The administration of judicial process and dispensation of justice by the Courts would become extremely difficult, if the members of the Bar do not maintain the highest standards of integrity and professionalism in pleading their cases before the Courts. Justice would become a casualty, even if temporarily. Though the law provides remedies to tackle such conduct on the part of litigants and their lawyers, and such myopic street smartness invariably eventually fails, it consumes a tremendous amount of material and other resources of the litigant who is a victim of such fraud, and also leads to immense waste of productive time of the Court which would otherwise be utilized in dealing with more deserving cases.

70. Now I may deal with two other decisions relied upon by the respondent. The reliance placed on the decision in Dinesh Kumar Gupta (supra) by the respondent is wholly misplaced. In this case, upon examination of facts the Court came to the conclusion that no case of contempt of court was made out. It was in this background that the Court observed that if an order is capable of more than one interpretation giving CONT.CAS(C) 815/2011 Page 54 of 57 rise to variety of consequences, non-compliance of the same cannot be held to be willful disobedience of the order so as to make out a case of contempt entailing serious consequences. In the present case, it is evident that the orders dated 30.09.2010 and 05.04.2011 were unambiguous and clearly brought out the fact that the defacto custody of the child Liam was with the petitioner. There was no question of there being any ambiguity in those orders, or of their being interpreted in any other manner.

71. For the same reason, reliance placed on the decision in Anshuman (supra) is also of no avail to the respondents. The decision in Dr. Ashsih Ranjan (supra) has absolutely no relevance to the facts of the present case. That was a case where the visitation rights of the father had been frustrated by the respondent-mother who had the custody of the child. The Supreme Court held that on account of the denial of the visitation rights and the tutoring of the minor child, and in the light of the changed circumstances, the petitioner-father could seek review/modification of the orders regarding custody before the appropriate Court. The decision in the aforesaid case does not mean that in every case where there is willful and deliberate breach of the orders of the Court, or orders are obtained by playing a fraud upon the Court and the opposite party, the party guilty of committing contempt of CONT.CAS(C) 815/2011 Page 55 of 57 Court can be allowed to get away with such contempt without being suitably dealt with by the Court.

72. In the light of the aforesaid discussion, I allow this petition. The respondent is found guilty of committing contempt of Court.

73. The respondent is guilty of disobeying the orders dated 30.09.2010 and 05.04.2011 passed by the leaned Guardianship Judge by removing the child Liam from the custody of the petitioner and by taking the said child into her own custody. The respondent is guilty of contempt of Court as she has abused the process of the Court, calculated to hamper the due course of judicial proceedings or the orderly administration of justice. She has made mockery of the judicial process.

74. I direct the respondent to purge the contempt by forthwith restoring the custody of the child Liam with the petitioner. I hold the orders passed by the learned Metropolitan Magistrate and learned ASJ in the proceedings initiated by the respondent under the D.V Act, in so far as they deal with the aspect of custody of the minor child Liam, to be null and void. I call upon the respondent to show cause as to why she should not be punished for contempt of Court. Let the requisite notice issue to her for this purpose. CONT.CAS(C) 815/2011 Page 56 of 57

75. The counsel for the respondent, Mr. Sashank Kumar Lal is cautioned for minding his conduct in future. He is advised to adhere to the highest standards of professionalism, ethics and integrity as an Advocate.

76. I subject the respondent to costs of Rs. 2,00,000/-, out of which Rs.1,00,000/- be paid to the Delhi Legal Services Committee and the remaining amount be paid to the petitioner within four weeks from today. (VIPIN SANGHI)

JUDGE

FEBRUARY 21, 2012

sr/ms

CONT.CAS(C) 815/2011 Page 57 of 5

Child custody give to father and also Contempt of Court Charges initiated against Wife and her Advocate-Bombay High Court.

February 15, 2012 Leave a comment

Petitioner Wife and her Advocate charged with Contempt of Court for alleging false, fictitious charges of being Bias on the High Court Jugde. The Petitioner Wife and her Advocate where indulged in scurrilous personal attack on the Judge.


Bombay High Court


Mrs. Hema Ravishankar vs K.R. Ravishankar on 31 October, 2003
Equivalent citations: 2004 (3) BomCR 143, 2004 CriLJ 1205, I (2004) DMC 414
Author: A Khanwilkar
Bench: A Khanwilkar

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under Article 227 of the Constitution of India is directed against the judgment and order passed by the Family Court, No. II, Pune, dated 8th May 2003, below Exhibit 238 in Petition No. A-605 of 2000; and 17th May 2003 in Petition No. A-605 of 2000, respectively. The said proceedings have been instituted by the Respondent – husband against the Petitioner wife for divorce and custody of their minor child Shrikrishna.

2. The Petitioner and the Respondent were married on 30th June 1994 and Shrikrishna was born on 30th March 1996. It is the case of the Petitioner that the Petitioner and her child of 4 years were thrown out of the matrimonial home unceremoniously in June 2000 and since then, the Petitioner, along with her child, is staying separately. Initially, she stayed with her sister at Mumbai, and, now, has acquired her own house on monthly rent basis. The Petitioner is gainfully employed and is stated to be lecturer in South Mumbai College.

3. During the pendency of the main proceedings, being Petition No. A-605 of 2000, the Respondent filed application for interim access/custody of his minor son Shrikrishna during May Vacation, i.e., 12th April 2003 to 12th June 2003. The Court below was pleased to allow the said application by judgment and order dated 8th May 2003 and directed the Petitioner to produce the child on 17th May 2003 in the Family Court Child Care Centre, Pune, for being handed over to the Respondent for interim custody upto 2nd June 2003. The order as passed by the Family Court reads thus:

“1. The application is allowed.

2. The respondent wife should produce the child on 17-5-2003 in the Family Court Child Care Centre, Pune, as per the order dated 10-12-2001 and on that day, the minor son Shrikrishna should be handed over to the petitioner who would be entitled to retain the custody up to 2nd June 2003. He should bring the child on 2nd June 2003 in the Family Court, Pune, and to hand over the custody of the minor son to the respondent wife.”

4. The Petitioner, instead of complying with the above said order, filed application purported to be review application before the Family Court on 17th May 2003. That application has been rejected by the Family Court on the same day, i.e., 17th May 2003, by the following order:

“Heard Mr. Bhavsar Advocate for the Respondent. The order in question has been passed under Section 26 of the Hindu Marriage Act, granting interim custody from 17-05-2003 to 02-06-2003 to Petitioner father. No ground for review. Rejected.”

5. Accordingly, the aforesaid two orders are subject matter of challenge in the present writ petition.

6. This writ petition was moved before the Vacation Judge on 21st May 2003, when the Court was pleased to pass the following order:

“Heard learned Counsel for the Petitioner. None for Respondent.

2. Notice to the Respondent, returnable by 11-6-03.

3. In the meantime, ad-interim relief in terms of prayer Clause (b)

Authenticated copy of the order be given to the parties.”

7. The Respondent immediately thereafter filed Civil Application No 1061 of 2003 on 26th May 2003 for vacating ad interim order, which application was moved before the Vacation Judge on 28th May 2003. On that date, the following order came to be passed:

“Mr. Bulchandani, learned Counsel for the respondents, states that the vacation of the school is till 13th June 2003 and in view thereof, this matter could be heard on 2nd June 2003. Ms. Kataria, learned counsel for the petitioner, has no objection for listing this matter on 2nd June 2003.

Put up for admission on 2nd June 2003.”

8. The Respondent filed another application, being Civil Application No. 1103 of 2003 on 2nd June 2003. That application was moved before me after the reopening of the Court on 6th June 2003. Instead of deciding the said application, I thought it appropriate to hear the main matter and accordingly ordered the main matter to be posted on 9th June 2003. On 9th June 2003, the parties were heard for some time and having regard to the background of the matter, Counsel appearing for the parties were called upon to examine the possibility of some amicable solution in the matter, which could obviate avoidable litigation and also subserve the paramount interest of the minor child. The Counsel agreed to explore that possibility, and by consent, the matter was adjourned to 12th June, 2003. The matter was, adjourned to 12th June 2003. The mater was, however, taken up for hearing on 13th June 2003, and since the parties were not able to amicably resolve the matter, after hearing the Counsel for both sides on merits, I thought it appropriate to direct the parties to provide access of the minor child to the Respondent father on the dates specified in the said order. The order passed on 13th June 2003 was more or less on the same lines as was passed by this Court (Coram: Lodha, J.) on 9th August 2001 in the earlier round of litigation between the parties in Civil Revision Application No. 954 of 2001 on the same issue. Indeed, when I proceeded to pass the order on 13th June 2003, I was conscious of the fact that the main relief in the application, Exhibit 283, was for interim custody only during the ensuing May Vacation, i.e., 12th April 2003 to 12th June 2003. However, having regard to the background of the matter and as the same had remaining pending in this Court since 21st May 2003, the order as passed in favour of the Respondent dated 8th May 2003 by the Family Court could not be given effect to. In that sense, the object of passing the order dated 13th June 2003 was essentially to adjust the equities between the parties and also to facilitate the access between the father and the minor child. The order passed on 13th June 2003 reads thus:

“After hearing both sides at great length, to my mind, the appropriate course at the interim stage during the pendency of this writ petition is to pass the following order:

(i) The petitioner to give to the respondent access of the minor child Master Shrikrishna on 21-6-2003 between 1 P.M., and 5 P.M. at the Family Children Centre, Children Complex, Family Court, Bandra, Mumbai.

(ii) On 5-7-2003 between 1 P.M. and 6 P.M. at the Childcare Centre, Pune Family Court, Pune; and

(iii) on 19.7.2003 between 1 P.M. and 5 P.M. at the Family Children Centre, Family Court, Bandra, Mumbai and

(iv) on 20.8.2003 between 1 P.M., and 5 P.M. at the Childcare Centre, Pune, Family Court, Pune.

On each of the aforesaid dates, access be provided in the presence of the officer to be deputed by the Children Centre of the respective children complex. That officer to prepare a report regarding the behavioral aspect of the child after the meeting between the child and his father. That report be prepared in respect of each of the aforesaid meetings and be kept in a sealed cover to be presented to this Court on the next date of hearing.

2. The petitioner shall ensure the presence of the child on the appointed dates and time at the venue mentioned above and the respondent shall handover back the custody of the child on the expiry of the appointed time on each of the aforesaid dates at that venue.

3. The petitioner undertakes to comply with this order till such other or further order to be passed by this Court. The petitioner, who is personally present in Court, undertakes the above through his learned Counsel. This writ petition be posted on 6.8.2003 for further orders. The respondent undertakes to bear the travelling and other cost for the access to be provided at Pune by compensating the petitioner with a lumpsum of Rs. 1,000/= for each visit at Pune. That amount be paid over to the petitioner immediately after receiving access of the child at the appointed time and date at Pune.

4. Stand over to 6.8.2003. It is made clear that whenever the access is given, the petitioner shall not be present unless required by the concerned officer of the Children Centre.

5. In the meantime, it will be open to the parties to approach the trial Court for expediting the hearing of the main proceedings. If such a request is made, the trial Court may consider that request and dispose of the main proceedings, if possible, irrespective of the pendency of this writ petition.

6. The parties to act on an ordinary copy of the order duly authenticated by the Sheristedar of this Court.”

9. In terms of the above order, the matter was notified on 7th August 2003, when the same was adjourned to 18th August 2003. The matter was, however, taken on 19th August 2003, when my attention was invited to the fact that the reports, referred to in the order dated 13th June 2003, were still awaited. Accordingly, the matter was adjourned. The order passed on 19th August 2003 reads thus:

“Office Note indicates that the Report directed to be submitted in terms of Order dated 13th June 2003 has not been received so far.

Office to take necessary steps to ensure that the concerned report is received as per the directions in Order dated 13th June 2003 before the next date of hearing.

Post this matter on 8th September 2003.”

10. The matter was then taken up on 18th September 2003 when the reports from the Family Court, Pune, were received. It will be useful to advert to the order passed on 18th September 2003, which reads thus:

“Report has been received from the Family Court, Pune, dated 5th July 2003 and 4th August 2003. The report indicates that the child was quite friendly and comfortable with the father during their meetings on the respective dates. This report be placed on record. Copy of the report be made over to the Counsel appearing for the parties.

Since the report indicates that the child is friendly and comfortable with the father, it was suggested to the parties to work out some proper arrangement, so that the child can keep acquaintance with his father. In fact, a suggestion was also made to the Counsel appearing for the parties that they may explore the possibility of full and final settlement. In response to this suggestion, Counsel for the writ petitioner – wife submits that if the offer is received from the husband, that will be considered and the Court will be apprised about the developments on the next date of hearing.

Stand over one week for settlement.

All concerned to act on the ordinary copy duly authenticated by the Court Stenographer.”

11. It appears that after the matter was adjourned in terms of the above order, the Registry furnished copies of the reports received from the Family Court, Pune, to the Counsel appearing for the parties on 24th September, 2003. In the meantime, on 23rd September 2003, even the reports from the Family Court, Mumbai, were received by the Registry. It appears that copy of that report was not given to the Counsel for the Petitioner. Accordingly, on 24th September 2003, the Counsel appearing for the Petitioner mentioned the matter before me for production, which request was acceded to. The matter was accordingly got produced on 25th September 2003. However, on that day, when the matter was called out in the morning session, the Respondent’s Advocate was absent, for which reason the matter was kept back. Interestingly, when I retired to the Chamber during the Lunch Break, I found that one envelope addressed to me sent by the Petitioner was placed on my desk. This envelope was delivered in my Chamber to my personal staff. The communication contained in the said envelope was sent by the Petitioner addressed to the learned Chief Justice, purported to be dated 24th September 2003. It is necessary to reproduce the said communication in its entirety, which reads thus:

“MRS. HEMA RAVISHANKAR,

C-705, ‘The Great Eastern

Link’

Ram Mandir Road,

Goregaon (W),

Mumbai 400 104.

20.09.2003

WITHOUT PREJUDICE & CONFIDENTIAL

To,

THE HON’BLE CHIEF JUSTICE,

HIGH COURT,

Mumbai.

Respected Sir,

Sub: BOMBAY HIGH COURT,

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 3385 OF 2003

MRS. HEMA RAVISHANKAR… PETITIONER

Vs.

K.R. RAVISHANKAR … RESPONDENT

1. With utmost responsibility but very reluctantly I am compelled to lodge my grievance against Mr. Justice A.M. Khanwilkar.

2. Brief facts of my case are:

i) I have filed the above petition against my estranged husband the Respondent abovenamed challenging the order of custody of my minor child, granted by the Learned Judge, Pune Court during the vacation period of May 2003.

ii) The Learned Vacation Judge, His Lordship Shri S.K. Shan granted ad-interim stay on 21.05.2003.

iii) After the vacation the matter was listed on Board of Justice A.M. Khanwilkar, on the application of the Learned Advocate for the Respondent.

3. My grievances are based on following reasons:

i) Though on 13.06.2003, the cause of action had become infructuous, the learned Judge was adamant in granting accesses to the Respondent. Though there being no urgency, objection of my Advocate in hearing the matter after 4.45 P.M. was recorded by the Learned Judge with a comment in the open Court that my Advocate was adopting delaying tactics. My learned Advocate therefore proceeded to argue the matter. Accordingly, on 13.06.2003, the Learned Judge by his order, as a interim arrangement, granted access to the minor child on the specified days despite the dates conflicting with the schooling and tuition classes of my minor son.

ii) In due compliance of the order of the Learned Judge, I took my child during his schooling days and at the cost of his tuition classes to Family Courts at Pune and at Mumbai as directed by the Learned Judge on the specified days.

iii) By the said order dated 13.06.2003 the Learned Judge had directed the Counsellors both at Mumbai and at Pune to submit their reports. The matter was then to be listed on Board on 06.08.2003.

iv) The matter was listed on Board of the Learned Judge on 19.08.2003 and as no reports were yet received, the Learned Judge directed the office to ensure that reports of both the Counselors are received.

v) On 18.09.2003 the Learned Judge found two reports on record and without permitting my Advocate, even after request to have the benefit of the said reports and to make submissions thereon passed the order which is at Exhibit “A” hereto.

vi) At the insistence of the Court, my Advocate has always cooperated with the Court, first for accesses to the minor child and then for putting forth the offer of settlement.

vii) When my Advocate applied to the office for the reports, only two reports of Pune Family Counsellor were handed over. No reports of the Mumbai Family Counsellor was given to my Advocate as my Advocate was informed that no such report was received.

viii) By Precipi dated 24.09.2003 my Advocate therefore moved the Learned Judge for directions to the Counsellor of Family Court, Mumbai to submit the report as the factum of non-receipt of the report of the Counsellor of Family Court has been overlooked by the Learned Judge. Hereto annexed Exhibit “B” is a copy of the said precipe dated 24.09.2003.

ix) At 11.00 A.M. on 24.09.2003, the Learned Judge on the application of my Advocate directed the production of papers at 2.45 P.M.

x) The Learned Judge refused to pass any order on the precipe of my Advocate though the Learned Counsel for the Respondent was having in her possession the report of Counsellor of Family Court, at Mumbai which significantly was not on the record of the Hon’ble court. Despite my Advocate requesting for a copy of the reports from the Respondent Advocate, the Learned Judge declined to give any directions to the Learned Counsel for the Respondent to give the copy of the report to my Advocate. The Learned Judge directed my Advocate to only talk about over all settlement as the receipt of the reports was immaterial.

xi) My Advocate thereupon informed the Learned Judge that the offer of settlement submitted by the Advocate of the Respondent was not an offer for settlement but Respondent was seeking a decree on admission with all allegations of the Respondent to be accepted and admitted by the Petitioner. Hereto annexed Exhibit “C” is a copy of the said so called offer of settlement submitted by the Advocate of the Respondent. Though my Advocate took objection at such an offer the Learned Judge is insisting upon submitting to such a settlement.

4. Sir, the Learned Judge is clearly biased against me for no reason whatsoever. Though the cause of action has become infructuous and in my respectful submission the Petition merits to be made absolute in terms of interia order since fresh application for custody in ensuing October vacation has already been made by the Respondent before the Family Court Judge at Pune, the Learned Judge is virtually threatening to pass custody orders on my Petition if settlement is not gone through.

5. Sir, I have lost faith in the Learned Judge as:

i) No copies of the reports of the Family Court, Mumbai are supplied to me despite requests.

ii) How copies of reports are with the Advocate of Respondent when they were to be submitted to the Court and the Court refuses to take cognizance of this fact.

iii) The Learned Judge is insisting on settlement and therefore states in open Court that the copies of reports are not necessary.

iv) The bare look at the so-called settlement is humiliating for me since it seeks a decree on admission in the proceedings adopted by the Respondent against me in Pune Family Court. The Learned Judge is however not inclined to hear my Advocate otherwise than on the settlement proposed by the Respondent.

6. In the light of the above facts, I therefore request you Sir to call for proceedings in the above matter and if my grievances are found correct by Your Lordship, then I pray that the above case be assigned to any other Court in the cause of justice.

Yours faithfully,

Sd/-

HEMA RAVISHANKAR

Encl. As above

I hereby confirm the above facts

Sd/-

ADVOCATE FOR THE PETITIONER

CC: THE HON’BLE SHRI JUSTICE

A.M. KHANWILKAR

HIGH COURT,

Mumbai.”

12. The matter once again appeared on Board on 26th September 2003. When the matter was called out, none appeared for the Petitioner. Since I had already received the above communication, I requested the Counsel appearing for the Respondent to inform the Counsel for the Petitioner to remain present on the next occasion. The matter was then notified and taken up on 29th September 2003, when I passed the following order:

“This matter was got produced on 24th September 2003. It was directed to be kept on the following day. Accordingly, the matter was posted on 25th September 2003. However, on 25th September 2003, the mater was required to be kept back since Counsel for the Respondent husband was not present when it was called out for hearing. The matter was then posted on 26th September 2003. However, on 25th September 2003, when I retired to the Chamber, I noticed a communication dated 24-9-2003, addressed to the Hon’ble the Chief Justice and copy whereof was marked to me in connection with this matter. This communication is sent by the Petitioner-wife and countersigned by the Advocate on record for the Petitioner confirming the facts stated in the said communication. I shall deal with the contents of the letter at the appropriate stage.

2. Be that as it may, on 26th September 2003, when the matter was called out, none appeared for the Petitioner – wife. Since I wanted certain facts to be ascertained, I thought it appropriate that the matter be placed today. Accordingly, the matter has been placed today under the caption “Settlement”. When the matter was called out, Mr. Shah, Advocate, appeared for the Petitioner-wife. He was asked whether he was aware of the aforesaid communication. He emphatically said “yes” and also stated that it was delivered to my Personal staff in Chamber by his Clerk on 25-09-2003. He has also acknowledged the signatures appearing on the subject document, having been signed by the Petitioner wife herself and that the other signature belongs to him. He was also asked whether the Petitioner wife was personally present in the Court on 24th September 2003, to which he responded that the was “not present”. He was then asked as to whether the Petitioner wife as well as he himself having countersigned the communication would take the responsibility of the contents of the document in question. In response, he has answered in the affirmative. (At this stage, the learned Counsel registered strong protest that I was not honestly recording the proceedings and insisted that I should record that he as Advocate was only taking the responsibility of facts as stated in the letter in question.) The learned Counsel was then asked as to whether the Petitioner and/or he himself would like to withdraw this letter, partly or fully, to which he responded that the Petitioner is not present in the Court and he would take instructions from her in that behalf. Insofar as his personal stand is concerned, he submits that he would like to take instructions from his senior.

3. The above position has been placed on record in view of the background of the case, to which I shall advert to at the appropriate stage.

4. At the request of Mr. Shah, the matter is kept on Tuesday, the 7th of October 2003 First on Board – to anable the learned Advocate to make statement for himself as well as on behalf of his client with reference to the last query, as referred to above.

5. Post on 7th October 2003. First on Board.”

13. As per the above order, the matter was notified on 7th October 2003. When the matter was called out, Counsel appearing for the Petitioner explained their position, which is reflected in my order passed on that day, which reads thus:

“Today, Mr. Bulchandani appears for the Petitioner and states that he has himself drafted the subject communication, which was caused to be delivered in my Chamber, addressed to the learned Chief Justice of this Court. He further states that the Petitioner is willing to withdraw the complaint, provided I were to disassociate myself from this case. It was made clear to him that unless a clear stand was taken and the communication was unconditionally withdrawn, the question of my disassociating from the matter will not arise. He, however, insists that there is no question of unconditional withdrawal of the communication, and further he personally takes the responsibility of the facts stated in the communication and the consequences therefore. According to him, I cannot become Judge of my own cause.

In the circumstances, reserved for orders.”

(emphasis supplied.)

14. I had reserved the matter for orders, inter alia, as dictation of the order in open Court would have taken some time, resulting in stalling the progress of the Urgent Admission Board, which was quite heavy. Accordingly, the present Judgement has been pronounced today.

15. Insofar as the issue involved in the writ petition and the accompanying two Civil Applications is concerned, there can be no doubt that going strictly by the relief as claimed by the Respondent in application, Exhibit 238, which was filed before the Family Court No. II, Pune, no further adjudication is necessary. However, it is well settled that the High Court can, and in an appropriate case should, exercise its plenary jurisdiction, so as to do complete justice between the parties,if necessary by moulding the relief. (See B.C. Chaturvedi v. Union of India, (1995) 6 S.C.C. 719, @ 762 – paras 21 to 23). Moreover, this Court could not have been oblivious to the fact that if the petition was to be merely disposed of on the ground that the relief claimed by the Respondent in the application (Exhibit 238) is worked out, that would give undeserved or unfair advantage to the Petitioner. For the Respondent had filed the subject application on 13.3.2003, which was allowed on 8.5.2003, after contest. As per that order, the Petitioner was obliged to give custody of the minor child to the Respondent on 17.5.2003. However, only on that day, the Petitioner moved Review Petition before the Family Court, which was, however, rejected on the same day. The Petitioner then chose to move this Court by way of present petition on 21.5.2003, when ad-interim relief was granted. However when the Respondent moved this Court for vacating the ex parte ad-interim order, the Counsel for the Petitioner persuaded the Vacation Judge of this Court (on 28-5-2003) to defer the hearing of the petition beyond Vacation, for 2-6-2003, on the ground that the School Vacation was till 13.6.2003. On the subsequent dates, the matter was adjourned by consent, inter alia, to explore the possibility of settlement. It is in that backdrop, I had passed order on 13-6-2003 of providing limited access of the minor child to the Respondent on the specified dates, time and place, as the parties were unable to amicably resolve that issue. That course was legitimate and appropriate to do substantial justice between the parties. (See dictum of the Apex Court in para 16 of the decision , in Ram

Krishna Verma’s case). Besides, as already mentioned hereinabove, throughout my endeavour was to persuade the parties to work out some amicable solution by way of full and final settlement, or, at least, on the issue of access/custody of the minor child. For, the approach of any Court, especially in matrimonial and custody matters, must always be to persuade the parties to find out amicable solution, so as to obviate avoidable litigation and related expenditure and stress. In a recent decision of the Apex Court in B.S. Joshi v. State of Haryana, , it is observed that it is the duty of

the Court to encourage genuine settlements of matrimonial disputes. Again, in Sharda v. Dharampal, , the Apex

Court in para 36 has observed that in matrimonial disputes, the Court has a conciliatory role to play. To my mind, even the Advocates appearing for the parties in matrimonial matters, who are first the Officers of the Court, owe duty to persuade their clients to amicably resolve the dispute as per the exigencies of the case. They should encourage settlements which would facilitate early resolution of the dispute, so as to do substantial justice between the parties. It was more so in the present case, as it is matter of record that on the issue of custody/access of the minor child, the Respondent has so far filed at least couple of applications (five) before the Family Court on different occasions during the pendency of the main proceedings since the year 2000. Moreover, the present writ petition was the fourth of litigation before this Court, as prior to this writ petition, already two Civil Revision Applications and one another writ petition have been filed by the parties challenging the interim orders passed by the Family Court, Pune. In this backdrop, it was expected that the parties should work out some amicable solution at least on the issue of access/custody of the minor child, during the pendency of the main proceedings, instead of filing repeated applications before the Family Court and challenging the orders passed therein before this Court. I was quite optimistic that the parties would see reason, because both of them are well-educated. The order passed on 13th June 2003 was also an attempt to provide an opportunity to the minor child to meet his father during the limited access on the specified dates. The concerned Family Court was directed to submit report to this Court regarding the meeting only to reassure as to whether the same was fruitful and in the interest of the minor child. The reports submitted by the Family Court, Pune, reveal that the meeting between the minor child and the Respondent was quite friendly and comfortable. In the wake of the report, the parties were once again called upon to explore the possibility of settlement, if any. Instead of exploring that possibility, the Petitioner and her advocates have indulged in scurrilous personal attack on me, as is evident from the contents of the communication sent by the Petitioner to the learned Chief Justice and which communication has been countersigned by the Petitioner’s Advocates, confirming the fats stated therein. In the circumstances, the appropriate course, to my mind, is to dispose of the main writ petition as well as the civil applications by directing the Family Court, Pune, the expedite the hearing of the main petition pending between the parties, being Petition No. A-605 of 2000. That be done pre-emptorily by the end of April 2004. The parties are directed to extend necessary cooperation to the Family Court for early disposal of the main proceedings.

16. Reverting to the communication dated 24th September 2003, which has been addressed by the Petitioner to the learned Chief Justice and countersigned by her Advocates confirming the facts stated in the said communication, I have no hesitation in observing that the same is per se mischievous, malicious and addressed with purpose. Although it is not necessary for me to refute each and every statement in the said communication, I would broadly mention that the insinuations made in the communication (particularly the underlined portion), inter alia, that I was adamant in granting access of the minor child to the Respondent and was prevailing (insisting) upon the Petitioner to only talk and submit to settlement are distorted statement of facts. If the Petitioner was unhappy with the order dated 13-6-2003, she could have well within her rights questioned the propriety of that order before the appropriate forum. That has not been done. Instead, now that order is used to suggest that I was adamant in giving access of the minor child. This cannot be countenanced at all. Indeed, during the course of hearing, the parties were repeatedly told to find out amicable solution because, as mentioned earlier, it is matter of record that already five applications for similar reliefs have been filed by the Respondent before the Family Court in the past. Besides, the parties were required to approach this Court on four different occasions. Even otherwise, in any matrimonial and custody matter, the approach of the Court should always be to call upon the parties to find out amicable resolution of the problem so as to obviate avoidable litigation and related expenditure and stress. Be that as it may, the communication further clearly alleges that I had bias against the Petitioner and that I had virtually threatened to pass custody orders if settlement was not arrived at. Those allegations are blatantly false and replete with calculated falsehood. By now, it is conceded position that the communication has been drafted by Advocate Bulchandani himself, as stated by his across the Bar on 7-10-2003. It is intriguing to note that Mr. Bulchandani claims that the said letter was drafted by him under instructions of the Petitioner nor Mr. Bulchandani, Advocate, were personally present in Court on 24-9-2003, for on that day, only Mr. Shah, Advocate, had appeared. Mr. Shah, Advocate, has conceded the fact that the Petitioner was not personally present in Court on 24-9-2003, as can be discerned from the proceedings dated 29-9-2003. It necessarily follows that source of information regarding the stated happenings on 24-9-2003 remain unexplained. Indeed, on that day, Mr. Shah was insisting for direction regarding furnishing the reports of the Family Court, Mumbai, however, I was at pains to explain him that if the parties were negotiating settlement, then no fruitful purpose would be served by insisting for those reports. He was also assured that, if required, his grievance can be looked into at a later stage. Be that as it may, non-passing of any direction on the precipe regarding the furnishing of the reports of the Family Court, Mumbai, can be no justification to allege that I was biased against the Petitioner. Moreover, at no stage, the Petitioner was ever forced to accept whatever settlement proposal is given by the Respondent, as is being suggested. Obviously, no Court would do that – as settlement can be only when both sides agree to accept a common and acceptable solution to the problem. To my mind, the Advocates for the Petitioner are the authors of the subject communication. And the Petitioner has followed and acted upon their advise. I could have, perhaps, pardoned the Petitioner if she had sent communication on her own without consulting her Advocate and without realising the consequences of such communication, being misguided litigant. However, the communication, referred to above, is a deliberate attempt of the Petitioner and her Advocates to not only impute motives to me as a Judge, but results in scandalizing the Court. In fact, an opportunity was given to the Petitioner as well as the Advocates to purge the contempt, but, instead of availing that opportunity, “they reiterated the stand taken in the above communication in open Court” and also expressed unwillingness to withdraw the allegations unconditionally, which is aggravating the insult. In fact, from the tenor of arguments of Mr. Bulchandani before me and, in particular, on 7th October 2003, as well as of Mr. J.P. Shah, Advocate, on 29th September 2003, their intention was pronounced, so as to show distrust and disrespect to the Court. I do not find it necessary to reproduce the arguments made by the Advocates for the Petitioner as it would only burden this Judgment. Suffice it to observe that a member of the Bar is an officer of the Court and owes a duty to the Court to uphold the dignity and decorum of the Court. He must not do anything to bring the Court itself into disrepute. When a legal practitioner makes imputation of unfairness or bias against the Judge in open Court, he is guilty of grave professional misconduct, for he would grossly overstep the limits of propriety. (See Lalit Mohan Das) Scandalizing the Court in such manner tantamounts to polluting the very fount of Justice; such conduct was not a matter between an individually member of the Bar and a member of the Judiciary; it has brought into disrepute the whole administration of justice (See Lalit Mohan Das, supra)

17. Insofar as the grievance made in para (v) of the communication, the same is entirely misplaced. For the proceedings of 18-9-2003 would clearly belie that grievance. Inasmuch as the office was directed to furnish copy of the reports received by this Court in sealed cover from the Family Court, Pune, to the parties. Besides, no adverse order was passed against the Petitioner at all on that day.

18. As mentioned earlier, neither the Petitioner, who was personally present in the Court on 7th October 2003, nor her Advocates, Mr. K.R. Bulchandani and Mr. J.P. Shah, expressed any regret or contriteness or remorse, but instead reiterated their stand and made it more than clear that they would withdraw the communication only if I were to disassociate myself from this case. This stand clearly amounts to forcing a Judge from withdrawing himself from hearing the case as a condition precedent. This itself is contumacious.

19. It was be apposite to advert to the dictum of the Apex Court in L.D. Jaikwal v. State of U.P., , which reads thus:

“We are sorry to say we cannot subscribe to the ‘slap-say sorry-and forget’ school of thought in administration of contempt jurisprudence. Saying ‘sorry’ does not make the slapper poorer. Nor does the check which has taken the slap smart less upon the said hypocritical word being uttered through the very lips which not long ago slandered a judicial officer without the slightest compunction.”

20. In the present case, neither the Petitioner nor her Advocates were willing to unconditionally withdraw the allegations, leave alone expressing sorry or regret. In Jaikwal’s case (supra), the Apex Court then went on to observe at page 408 (of the S.C.C.) as follows:

” … It will be rather difficult to persuade members of the Bar, who care for their self-respect to join the judiciary if they are expected to pay such a price for it. And no sitting Judge will feel free to decide any matter as per the dictates of his conscience on account of the fear of being scandalized and persecuted by an advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation were to be countenanced, advocates who can cow down the Judges, and make them fall in line with their wishes, by threats of character assassination and persecution, will be advocates who are mindful of professional ethics and believe in maintaining the decorum of courts.”

21. It will be also useful to advert to the enunciation of the Apex Court in the case of Vinay Chandra Mishra, in re, , the Court observed thus:

“The rule of law is the foundation of a democratic society. The Judiciary is the guardian of the rule of law. Hence judiciary is not only the third pillar, but the central pillar of the democratic State. In a democracy like ours, where there is a written Constitution which is above all individuals and institutions and where the power of judicial review is vested in the superior courts, the judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the dispute between the parties which is essential to peaceful and orderly development of the society. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilised life in the society. It is for this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalizing them and obstructing them from discharging their duties without fear or favour. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalized, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.”

(emphasis supplied.)

22. I have not even the slightest of doubt that the Petitioner and her Advocates have deliberately indulged in this conduct with purpose. The communication, as observed earlier, is replete with calculated falsehood and distortion of the happenings during the course of proceedings in Court.

23. Indeed, the initiation of contempt action against any one, and, especially against the Advocate, is a painful duty, which I am called upon to hereby perform to maintain the dignity and decorum of this Court, for it is necessary to protect the administration of public justice. During this Roster (between June 2003 to October 2003), I came across couple of matters and, more particularly, matrimonial and custody matters, wherein similar allegations and insinuations of bias against the Presiding Judge of the lower Court were made. In one such matter, Writ Petition No. 2917 of 2003 – Sandeep Balkrishna Jindal v. Anju Nemchand Jain, I had requested the learned Advocate-General to assist the Court. But, eventually, the Petitioner therein was well advised to unconditionally withdraw all the allegations against the Lower Court Judge. I allowed the Petitioner therein to approach the lower Court to offer unconditional apology and then participate in the pending proceedings, which he did. That matter has been kept pending to observe the conduct of the Petitioner in terms of his undertaking given to this Court. Perhaps, the litigants are carrying wrong notion that, by such method, they can avoid a particular Judge, or, cause to protract the hearing of the cause, to subserve their ulterior design. If such an impression is gaining ground, it needs to be removed at the earliest. Such conduct has direct impact on the Court’s independence, dignity and decorum, and for which reason, it cannot be tolerated, as it undermines the Court’s prestige and dignity and affects the working of the Court – for it vitiates the atmosphere in which the Court normally functions. (See Mohd. Zahir Khan v. Vijai Singh, (1992) Supp. 2 S.C.C. 72, at page 76.

24. As observed in Vinay Chandra Mishra , normally, no Judge takes action for in facie curiae contempt against the lawyer unless he is impelled to do so. In the present case, it is not the heat generated in the arguments, but the language used, the tone and the manner in which it was expressed and the intention behind using it left no manner of doubt that it was calculated to insult, show disrespect, to overbear and overawe the Court. Both the Advocates, Mr. K.R. Bulchandani and Mr. J.P. Shah, to my mind, exhibited temper and discourteousness during the course of arguments. Besides, the insinuations made in the communication and reiterated in the Court leaves no manner of doubt that the intention of the Petitioner and her Advocates was to cause aspersions on my integrity and judicial impartiality and independence. That cannot be countenanced. (See M.B. Sanghi, Advocate, and 12).

25. At one stage, the Advocates for the Petitioner were at pains to explain that they have countersigned the document only to confirm the facts stated therein. However, even when opportunity was given to them, they have maintained that position. Perhaps, they are under some misconception that their role was only of countersigning the communication, so as to confirm the facts stated in the communication, would not constitute criminal contempt of Court. The facts alleged in the communication, inter alia, are that I was adamant in granting access of the minor child to the Respondent and that I was insisting upon the Petitioner to talk and submit to the settlement suggested by the Respondent, and virtually threatened the Petitioner with passing custody orders, if the settlement was not arrived at and that I was clearly biased against the Petitioner. The above allegations are clearly one of ‘fact’ confirmed by the Advocates. The expression ‘fact’ has been defined in Section 3 of the Indian Evidence Act, 1872. To put it differently, all the allegations made in the communication, albeit by the Petitioner, by itself, constitute criminal contempt and even the Advocates are liable for that action, having confirmed those facts.

26. Moreover, the Advocates having drafted and countersigned the said letter and ventured to hand over the communication in the office of the learned Chief Justice and in my Chamber, through their Clerk, is an act which, by itself, constitutes criminal contempt. The fact that the letter is drafted and countersigned by the Advocates and caused to be delivered have been conceded by the Advocates across the Bar, as noted in my above orders (i.e. 29-9-2003 and 7-10-2003). It will be useful to advert to the decision of the Apex Court in Sanjiv Dutt’s case, . The drafting of the subject

communication on behalf of the Petitioner and, in any case, the act of causing it to be delivered to me especially when the matter was in progress constitutes criminal contempt.

27. The communication as sent to the learned Chief Justice, referred to above, to my mind, would come within the sweep of the expansive definition of criminal contemp. (See Radha Mohan Lal’s case, . It will be also useful to advert to the enunciations of the Apex Court in Jaswant Singh reported in (1995) Supp 1 S.C.C. 384 para 33; Ajay Kumar Pandey ;

Chetak Construction Ltd. and 17; in Dr.

D.C. Saxena, and 40); Ajay Kumar Pandey,

; Arundhati Roy, In re, reported

.

28. Insofar as the grievance regarding the reports received from the Family Court, Mumbai, as mentioned earlier, the same were received by the Registry only on 23rd September 2003. The grievance made on behalf of the Petitioner that copy of those reports were not made available to the Petitioner, whereas the Respondent had already procured the same, is of no avail. In the first place, the hearing of the matter was deferred only to enable the parties to explore the possibility of settlement. In other words, non-furnishing of the reports could not have had any bearing on the settlement talks between the parties. Perhaps, that is only a ruse to justify the false allegations made in the communication.

29. As mentioned earlier, imputation of unfairness or bias made against me by the Advocates for the Petitioner constitutes grave professional misconduct, as is observed in the case of Lalit Mohan Das (supra). The Constitution Bench of the Apex Court in in the case of Supreme Court Bar Association v. Union of India has expressed that in a given case an advocate found guilty of committing contempt of Court may also be guilty of committing “professional misconduct”. Both these jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. In the light of the above, I am disposed to forward copy of this decision to the Bar Council of Maharashtra & Goa for taking appropriate action against the concerned Advocates in accordance with law.

30. Needless to mention that the above observations are prima facie opinion recorded by me, which has impelled me to ignite the painful action of contempt against one of the Litigant and her Advocates, as the Petitioner has consciously signed the offending communication, caused it to be delivered in the Chamber of the learned Chief Justice, as well as my Chamber, while the matter was in progress; and chose to maintain her stand, inspite of an opportunity given to her to correct the mistake. Whereas, the Advocates have drafted and are the authors of the offending communication, countersigned the same so as to confirm the facts stated therein, played active part in ensuring delivery thereof in the Chamber of the learned Chief Justice and my Chamber, while the matter was in progress, reiterated the stand in open Court to impute motives to me as an unfair and impartial Judge, insisted that I should disassociate myself from the hearing of the case, as a condition precedent, to withdraw the said communication; and inspite of opportunity given to them to take corrective measures, chose to justify their position and to take complete responsibility therefor.

31. Before parting, it will be apposite to advert to the exposition of the Constitution Bench of the Apex Court in the case of Supreme Court Bar Association (supra) para 80, which reads thus:

“In a given case it may be possible, for this Court or the High Court, to prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practise as an Advocate-on-Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however,does not amount to suspending or revoking his licence to practice as an advocate in other courts or tribunals.”

(emphasis supplied.)

The Apex Court, perhaps, had in mind Rule 8-A of Part I, Order 4, of the Supreme Court Rules, 1966. The said Rule reads thus:

“When on the complaint of any person or otherwise, the Court is of the opinion that an advocate on record, has been guilty of misconduct or of conduct unbecoming of an advocate on record, the Court may make an order removing his name from the register of advocates on record either permanently or for such period as the Court may think fit and the Registrar shall thereupon report the said fact to the Bar Council of India and to the State Bar Council concerned:”

As the Apex Court has observed that it is possible even for the High Court to prevent the contemner advocate to appear before it till he purges himself of the contempt, however, that can be done only if similar provision exists in the High Court Rules. It appears that our High Court has framed Rules under Section 34(1) of the Advocates Act, 1961, which are incorporated as Appendix VI of the Original Side rules and Schedule VII of Part III of the Appellate Side Rules, respectively. Clause 13 thereof is on the same lines as that of the Supreme Court Rules, referred to above, which reads thus:

“13. No Advocate who has been found guilty of Contempt of Court shall appear, act or plead in any Court unless he has purged himself of contempt.

The Court may in its discretion permit an Advocate who has been found guilty of Contempt of Court to appear, act or plead without purging himself of Contempt of Court.”

It is significant to note that the purport of this provision is that the Advocate on being found guilty of Contempt of Court would automatically stand disqualified to appear, act or plead not only in the High Court, but also the Courts subordinate thereto till he purges himself of the contempt, having regard to the definition of “Court” envisaged in Clause 1(b) of the said Rules. This is only to caution the members of the Bar about the serious consequences of embarking upon such adventures.

32. In the circumstances, I proceed to pass the following order.

ORDER

(1) Writ Petition as well as Civil Applications are disposed of with direction to the Family Court, Pune, to finally decide the main proceedings, being Petition No. A-605 of 2000, as expeditiously as possible, and pre-emptorily by the end of April 2004.

(2) Registry to issue show cause notice to:

(a) Mrs. Hema Ravishankar, residing at C-705, The Great Eastern Link’, Ram Mandir Road, Goregaon (West), Mumbai 400 104;

(b) Mr. K.R. Bulchandani, Advocate, having office at C/o. M/s. Kamal & Co., Advocate and Solicitors, 128, Great Western Building, 23, N.M. Road, Extension, Fort, Bombay 400 023; and

(c) Mr. J.P. Shah, Advocate, having office at C/o. M/s. Kamal & Co., Advocates and Solicitors, 128, Great Western Building, 23, N.M. Road, Extension, Fort, Bombay 400 023,

calling upon the respective notice to show cause why they should not be punished for having committed contempt of this Court within the meaning of Contempt of Courts Act, 1971; read with relevant Rules framed by this Court under the Contempt of Courts Act, 1971 (which are part of the Bombay High Court Appellate Side Rules, as amended uptodate).

(3) Copy of this Order be forwarded to the Secretary, Bar Council of Maharashtra & Goa, Mumbai, for taking appropriate action against the concerned Advocates, as may be advised and permissible by law.

(4) Office to place these papers before the learned Chief Justice for assigning hearing on show cause notice to appropriate Bench.

P.C.: Certified Copy expedited. Writ be sent to the Family Court, Pune, forthwith.

CHILD ACCESS & CUSTODY GUIDELINES-Approved by Hon’ble Bombay High Court

January 23, 2012 16 comments

CHILD ACCESS & VISITATION GUIDELINES
BY
CHILD RIGHTS FOUNDATION

A serious need is felt for approaching the Hon’ble Principal Judge Family court to set proper guidelines for the Family Courts regarding access, visitation and custody, as this will help in disposing off the cases quickly in a scientific manner ensuring that the right of the child to be showered with the love and affection of both the parents is not lost or delayed.
I. Under Section 10(3) of the Family Courts Act the Principal Judge has the
powers to frame rules.
II. When making a parenting order in relation to a child, the court must apply a
presumption that it is in the best interests of the child for the child’s parents to
have equal shared parental responsibility for the child While determining the
best interests of the child:
III. The primary considerations are:
a. Ensuring benefit to the child of having spend equal or substantial or
significant time to develop a meaningful relationship with both the child’s
parents and to ensure an implement of overnight access so that the child
gets love and affection of not only both the parents but also of grandparents,
uncles , aunties, cousins etc thereby ensuring that the family heritage is
maintained; and
b. Ensuring the need to protect the child from physical or psychological harm
from being subjected to, or exposed to, abuse, neglect or family violence.

INTRODUCTION :

The recent trend in the society is seeing a paradigm change in the matrimonial
relationship. The numbers of divorce cases are rising, particularly in the last decade, more and more middle and lower-middle class couples have been approaching family court for divorce, resulting in rise of bitter child custody battles. Often, the innocent children are used as tools of vengeance by vindictive litigants who inflict severe emotional and psychological abuse on the child thereby seriously affecting the child in his/her later part of life . Failure in marriages is sometimes due to lack of awareness or realization among the litigants where often one of the partner suffers from a personality disorder and/or adjustment disorder which can be easily diagnosed through psychological evaluation.
1 A serious need is felt for approaching the Hon’ble court as well as HC to set
proper guidelines for the Family Courts, as this will help in disposing off the cases quickly in a scientific manner rather than on speculation.
In family disputes, litigants often make false and vindictive allegations against
each other, wasting & consuming enormous court’s time which can be reduced
considerably.
Further it would also help to some extent in reconciliation of marital disputes.
Presently, even the Legal system, bureaucrats, politicians, statutory agencies for child welfare, NGO’s etc., have forgotten or missed to appreciate or understand child rights as well as the immense emotional trauma that innocent children undergo in the process of custody litigation and parent separation due to lack of love and affection from both the parents.
Depriving love & affection of both parents, more particularly due to alienation of the child by the custodial parent and or denial of proper access to the non-custodial parent by the courts without realizing the serious consequences caused in the later part of the child’s life such as drug abuse, deteriorating educational achievement, premature sexuality, mental/personality disorder, chronic depression, suicidal tendency, out of wed-lock birth, and often a major force behind serious crimes.
There is an urgent need to establish well defined framework and guidelines for
family courts and the counselors to implement while deciding the custody of the children.
Delay in action or callous approach, what kind of future society/generation are we going to create.
Needless, to say today’s youth are going to be leaders & thinkers of tomorrow.
The Nation’s future depends upon today’s children. Hence, immediate intervention of higher courts must. Presently these issues are being decided in an absolutely subjective fashion by the family court seriously affecting the mental health of the tender children as well as specific violations of UN Convention on rights of the Child.
One of the fundamental rights of the children is to get love and affection from both the parents (irrespective of parent’s conflict), right to quality of life and survival, and right to be cared, right to develop a sense of belonging, right to participate fully in family, cultural and social life.
2 We would like to bring specific focus to Article 39(e) & (f), the state shall direct its Policy in such a manner that the tender age of children is not abused and children are given opportunities and facilities to develop in a healthy manner and childhood is protected against exploitation and against moral and material abandonment.
While framing guidelines a clear distinction needs to be made between the Rights of the Child versus the Rights of a Parent (which invariably ends up being interpreted as Rights of only the mother).
India and the *UNCRC The UNCRC – United Nations Convention on the Rights of the Child (UNCRC) a clarion of worldwide movement and the pinnacle of international effort to promote the basic needs of children as fundamental human rights is a remarkable and wonderful gift to the children which is given a ‘go by’ by our current legal system. (India along with 193 countries has also agreed to undertake the obligations of the Convention by ratifying to it as on December 2008).

INTERIM CHILD VISITATION GUIDELINES


Immediately within one week from the date of service of summons or the first
meeting with the counselor for mediation and conciliation parties shall draw up an interim visitation plan.
The basic principles of the courts are to ensure that the child/children get(s) to
spend equal or substantial and significant time to be showered with love and
affection from both the parents irrespective of parent’s conflict.
Efforts should be made by parties and if necessary court should direct parties to mutually agree upon a visitation schedule to be drawn up along with the Marriage Counselor within a maximum period of 60 days. Pending, finalization of mutual final overnight visitation agreement, an interim access has to be worked out immediately.
If the parties cannot agree on visitation, their first alternative is to mediate the
conflict. Visitation is for the primary benefit of the child. Visitation should not be viewed as a privilege to be exercised at the whim of either parent, but as a
responsibility that should be fulfilled as a necessary cause. The custodial  parent is expected to provide access of each child at unscheduled times if requested and if to do so would not unreasonably disrupt prior planned activities of the child or the custodial parent.
REINTRODUCTION OF ABSENT PARENT: The Guidelines assume that each
parent has been a continuous presence in the children’s lives. In the event that  a parent has had limited or no contact with his or her children and wishes to be
reintroduced into the children’s lives, it is up to the parents to agree on the means by which this is to be accomplished. If the parents are unable to agree, the first alternative shall be to mediate the conflict. If mediation is unsuccessful, it shall be the responsibility of the Court to adopt a schedule to ease the reintroduction.

CHAPTER 1
INTERIM VISITATION


The following visitation guidelines should balance the needs of both parent and
child, regardless of whether that child has older siblings that enjoy extended
visitation with the Non-custodial parent.
A. VISITATION (CHILDREN AGED BETWEEN 0 TO 36 MONTHS)
The following visitation guidelines should balance the needs of both parent and
child, regardless of whether that child has older siblings that enjoy extended
visitation with the Non-custodial parent.
1. WEEKENDS: The Non-custodial parent shall be entitled to weekend visitation
every weekend. For children between 0 to 36 months visitation shall be between 11.00 A.M. to 2.00 P.M. or 4.30 P.M. to 7.30 P.M. on Saturday and Sunday during the weekend and Twice (two times) during Weekday between Monday to Friday for 1½ hours (90 Minutes).
2. WEEKDAY VISITATION: The Non-custodial parent shall be entitled to visitation two (2) evenings per week during weekday between Monday to Friday for 1½ hours (90 Minutes). These shall be the same two evenings every week and varied only if the weekday visitation schedule conflicts with the holiday or vacation schedule. If the parties cannot agree, weekday visitation shall be on Monday and Wednesday.
3. HOLIDAYS: The non-custodial parent shall be entitled to spend at least 3 Three hours on the holiday or festival day including 15th August, 26th January, 1st May (Maharashtra day;) , 2nd October (Gandhi Jayanti), 14th November (Children’s day) excluding the time of travel. Only where it is not possible to share during the festival day due to reasons of distance or otherwise. In odd-numbered years, the Non-custodial parent shall be entitled to spend with the minor child; in even numbered years, the schedule shall be reversed. Aparty’s entitlement to Holiday visitation overrides the other party’s right to regularly scheduled weeknight or weekend visitation. If either or both parties celebrate other holidays, such holidays should be written down, divided and alternated each year

 Note : For children aged between 0 to 36 months it shall be open for the custodial parent to remain present during visitation.
i. Visitation shall be from 11:00 a.m. until 2:00 p.m. or 4.00 p.m. to 7.00 p.m.
on the official holiday.

B. VISITATION (CHILDREN 36 MONTHS AND OLDER)
4. WEEKENDS: The Non-custodial parent shall be entitled to weekend visitation
every other weekend or every weekend one night every week. Every other
weekend Visitation shall begin Friday at 6:00 p.m. and end at 6:00 p.m. on
Sunday. If every weekend visitation is opted then every week overnight visitation shall begin either from every Friday at 6.00 p.m. and end on Saturday 6.00 pm. or from every Saturday 6.00 p.m. and end on 6.00 p.m on Sunday. It is not the responsibility of the custodial parent to provide food or shelter for the child during the Non-custodial parent parent’s visitation.
5. WEEKDAY VISITATION: If the parties reside within thirty (30) Kilometers driving distance of each other, the Non-custodial parent shall have visitation two (2) evening per week for 2 two hours between 6.00 p.m. to 8.00 p.m., but shall exercise the weekday visitation in the locale of the child’s primary residence or within the radius of 10 ten kilometers. The preceding sentence shall not preclude occasional travel beyond the thirty (30) Kilometers for special weekday events. The weekday visitation shall be on the same evening each week and varied only if it conflicts with the holiday or vacation schedule. If the parties cannot agree on the weeknight and if there are no scheduled activities for Wednesday, it shall be Wednesday evening for 2 hours. If there are activities scheduled for Wednesday, the Non-custodial parent shall have first choice of an alternate weekday for weekday visitation
6. HOLIDAYS: The non-custodial parent shall be entitled to spend at least Three (3) hours on holidays and festival day excluding the time of travel. Only where it is not possible to share during the holidays and festival day due to reasons of distance or otherwise. Aparty’s entitlement to Holiday visitation overrides the other party’s right to regularly scheduled weeknight or weekend visitation. If either or both parties celebrate other holidays, such holidays should be written down, divided and alternated. In the absence of an agreement, the court shall allocate religious holidays between the parties.
i. Visitation shall be from 11:00 a.m. until 2:00 p.m. Or from 4.00pm to 7.00pm on the official holiday.
7. CHILDREN COMPLEX ROOM: Where access even though either agreed by
mutual consent or ordered by the court is not being granted to the noncustodial parent, Children’s complex room situated in the premises of the Family Courts or such other place as either mutually agreed or directed by the court such as premises made available and approved by the Hon’ble Family court shall be used for purposes of counseling the child or the parent for a specific period and thereafter access can continue as per schedule set forth.

CHAPTER – 2
FINAL CHILD VISITATION GUIDELINES PENDING CUSTODY ORDER OF THE HON’BLE COURT.

8. GENERALPROVISIONS
The parent with primary custody (parent who is having custody of child since
birth and is taking care of the day to day and hour to hour need of the child) shall be referred to herein as the custodial parent, and the other parent shall be
referred to as the Non-custodial parent.
9. ACCESS VISITATION SCHEDULE:
This visitation schedule has been approved by the Hon’ble Bombay High Court
as a model visitation schedule. Parties to any order entered before the effective
date of these guidelines may agree in writing to the provisions herein; otherwise, such parties shall continue to comply with the old order unless a modification of the order is entered by the court.
I. If the parties cannot agree on visitation, their first alternative is to mediate the conflict. Even if mediation does not work then the court can pass an
appropriate order in terms of the visitation schedule for parties to comply.
Special reasons may exist to alter this visitation schedule such as: age of the
child, health, special care needs, etc.
ii. Within a period of not more than 60 days parties shall draw up and finalize a
final schedule of visitation as per chapter 3 below.
iii.On the visitation schedule being drawn and agreed upon between the
custodial and the non-custodial parent the counselor shall have the same duly
executed by the parties and the same shall be placed on record for the
approval of the Hon’ble court. Parties shall comply with the agreement in full
and any violation shall give rise to cause of action to the aggrieved party to
seek appropriate directions from the court.
A. The no-contact or limitation-of-contact provisions of any domestic violence
case, injunction case, juvenile case, or criminal case supersede any
contact provisions set forth in these guidelines. That is, the no-contact or
limitation-of-contact provisions of any domestic violence case, injunction
case, juvenile case, or criminal case should be followed as set forth by the judge in that case. It may be necessary to seek a modification of the no contact or limitation-of-contact provisions in order to facilitate visitation.

B. The term “local” shall apply to parties residing within 200 driving kms
of each other.
C. The term “nonlocal” shall apply to parties not residing within 200 driving
Kilometers of each other.
10. ENFORCEMENT OF VISITATION SCHEDULE: If the parties cannot agree on
visitation, their first alternative is to mediate the conflict. Even if mediation does not work then the court can pass an appropriate order in terms of the visitation schedule for parties to comply.
11. MEDICATION, ILLNESS OR ACCIDENT: If medication or therapy has been
prescribed for the child, then both parents shall without fail provide the child all medical prescription dosages, treatment and/or therapy as may be prescribed for the child. The parents shall share the health care professional’s name and phone number as well as instructions for treatment. If the child becomes ill or is involved in an accident, and treatment by a medical professional is obtained, the parent who has the child at the time of the illness or accident shall notify the other parent as soon as practicable but no later than three (3) hours after the incident or diagnosis. ILLNESS OF THE CHILD SHALL NOT PREVENT VISITATION WITH THE CHILD, UNLESS THE CHILD IS HOSPITALIZED. NON CUSTODIAL PARENT CAN VISIT THE CHILD IN HOSPITAL.
12. COMMUNICATIONS. Provided that both parents have telephones in their
homes, the child shall be entitled telephone communication at least once every
day with both parents. Each parent shall immediately deliver to the child all
letters, cards, e-mails, correspondence, telephone messages, gifts, toys,
clothes and other items sent to that child by the other parent. Neither parent shall withhold, return, destroy, give away, sell or otherwise dispose of any such items. If either parent plans a vacation or trip out of town with the child for three (3) days or more, that parent must provide the other parent with a general itinerary, a phone number where the child can be reached, and the dates of departure and return. Each Parent shall provide the other Parent promptly upon being requested to do so, with information concerning the well-being of said children including, but not limited to; monthly school attendance reports, reports concerning completion of homework, copies of report cards, school meeting notices, vacation schedules, class programs, requests for conferences, results of diagnostic tests, notices of activities involving said children, samples of school work, order forms for school pictures, communications from health care providers; the names, addresses and telephone numbers of all schools, preschools, regular day care providers, all health care providers, counselors, or other activity supervisor, and friends, schoolmates and relatives.

13. SCHEDULED EVENTS: Both parents shall be entitled and are encouraged to
attend and participate in the child’s special events, such as school programs,
graduation, sports, recitals, and other extracurricular activities. When the child has extracurricular activities, the parent caring for the child when the activity is scheduled should assure the child’s attendance. Each parent shall advise the other parent of extracurricular activities in which the child participates within twenty-four (24) hours of notification of an event or activity. Each parent shall make an effort not to schedule activities for the child that interferes with the other parent’s visitation time with the child.

14. ADDITIONAL VISITATION :

a.The Non-custodial parent shall be entitled to exercise other reasonable visitation in the locale of the child’s primary residence or at other places like
club, place of worship, shop, ground, mall, upon reasonable notice subject to a
minimum of 12 hours notice to the custodial parent whenever. There may be
need where the non-custodial parent may wish and desire that the child
should be present on certain occasions such as poojas, religious functions,
birthdays, anniversary celebration, inaugurations, marriage, or emergencies
such as untimely death or hospitalization of a close relative such as
grandparent/relations etc. In such circumstances the custodial parent shall
allow access of the child immediately.
15. ADEQUATE AND CLEAN CLOTHING FOR VISITATION: Adequate and clean
clothing shall be supplied by the custodial parent and all these clothes shall be
returned in the same clean condition by the Non-custodial parent to the custodial parent after each visitation period.
16. INTENT TO RELOCATE: Neither party to the suit can relocate unless final
visitation rights agreement as set out is signed and finalized.
17. NOTICE OF INTENT TO RELOCATE: In the event that either parent intends to relocate outside of local area of residence of the non-custodial parent, he/she shall provide the other parent with ninety (90) days written notice prior to any relocation. This is a notice provision only and does not eliminate the need for court approval of such relocation if legally necessary. In the event such relocation does take place and the custodial parent is permitted to relocate and further if the non-custodial parent in order to be able to be near the child and for the sake of the child also chooses to relocate then under such circumstances the non-custodial parent on relocation shall enjoy the same access schedules as already decided and agreed without any alterations. In the event the noncustodial parent’s status changes from ‘Non-local’to ‘Local’the access schedule shall also likewise change and the non-custodial parent shall be entitled to all provisions of local access.
18.CHANGES IN ADDRESS AND PHONE NUMBERS: Neither parent shall
conceal the whereabouts of the child from the other parent. Each parent shall
advise the other parent at all times of the residence address and telephone
number where the child will be as well as the parent’s work telephone number. If a residence or telephone number changes, the parent making the change shall notify the other parent personally or by telephone within twenty-four (24) hours and in writing within seventy-two (72) hours of the change.
19. CHILD SUPPORT / MAINTENANCE: Non-payment or late payment of child
support is NOT an acceptable reason to deny or interfere with visitation.
Conversely, denial of visitation is NOT justification for nonpayment or late
payment of child support. Child support and child visitation are separate and
independent issues and are not to be manipulated by either parent to gain
leverage over the other parent with regard to visitation or child support. Child
support shall NOTstop during visitation periods, unless provided by court order.
20. FLEXIBILITY AND THE BEST INTERESTS OF THE CHILD: The parents may
agree to change this schedule to meet the needs of their child. The parents are
encouraged to put such changes in writing. If the parents do not agree to
visitation schedule changes, they must adhere to these guidelines, or a parent in violation may be held in contempt of court.
21. SHIFTOF CUSTODY: FOR REASONS OF CHILD ALIENATION / TUTORING /
MIND POISONING / BRAINWASHING / PARENTAL ALIENATION
SYNDROME : In the event it is observed or alleged by concrete substantive
evidence or material placed on record enumerating instances as listed below the court shall proceed to seriously entertain and decide that the custody of the child be shifted from the custodial parent to the non-custodial parents on their being conclusive evidence to substantiate either any one or more of the following :

A custodial parent who unjustifiably punishes her divorcing or divorced Non-
Custodial parent by:
I. Attempting to alienate their mutual child(ren) from the Non-Custodial parent.
ii. Any act, deed done or caused to be done by the custodial parent which may
lead to the infringement of the right of the non-custodial parent’s visitation.
iii. Involving others in malicious actions against the Non-Custodial parent.
iv. Engaging in excessive litigation.
v. The custodial parent specifically attempts to deny her child(ren)regular
uninterrupted visitation with the Non-Custodial parent.
vi. Uninhibited telephone access to the Non-Custodial parent.
vii. Obstructs or causes any obstruction in the Non Custodial parents
participation in the child(ren)’s school life and extracurricular activities.
viii. The pattern is pervasive and includes malicious acts towards the Non-
Custodial parent including:
ix. Lying to the children
x. Lying to others
xi. Violations of law Or Making False Complaints
xii. The disorder is not specifically due to another mental disorder although a
separate mental disorder may coexist.
22.NEW SPOUSE OR COMPANION: The parents shall not encourage the child to
call a new spouse or companion “Papa” “Mummy” “Father”, “Dad”, “Mother”,
“Mom”, or similar names, as such is detrimental to the child’s relationship with
his/her natural parents and may confuse and adversely affect the child. A
substitute name may be suggested or encouraged. Each parent shall encourage
a new spouse or companion not to confront or to interfere with the other parent’s contacts or visitation with the child and each parent is expected to prevent any such confrontation or interference. The other parent shall not be adversarial or hostile to a new spouse or companion but shall be courteous, polite, respectful, and non-threatening. Unless otherwise ordered or agreed by the parties, the parents are expected to speak directly with each other concerning all matters related to a divorce or separation judgment or order.
23.NAME OF THE CHILD & SURNAME: The custodial parent shall not be entitled to change the name or the surname of the child which has been given to the child as per either a ceremony performed for the same or the name along with the father’s surname as it appears in the birth certificate.
24.CHANGE OF SCHOOLOR DAYCARE CENTRE: The custodial parent shall not
be entitled to admit, change the school or the daycare centre of the child without written consent and/or agreement between the parties. If the issues is not being resolved then such admission, change of school/daycare centre of the child shall be as per the order of the court.
25.REMOVAL OF CHILD FROM DAYCARE OR SCHOOL: In the absence of prior
agreement between the parties and proper notification of the daycare or school - except in the event of an emergency – the Non-custodial parent shall not remove the child from daycare or school for visitation or otherwise. This paragraph shall not be applied to preclude the Noncustodial parent’s participation as a parent in school activities and access to the child at school, to the same extent as afforded the custodial parent, nor to prevent the Non-custodial parent from picking the child up after school or daycare if such pickup is pursuant to the parties’ visitation arrangement.
26. CANCELLATION BYNON-CUSTODIAL PARENT
A.Local (parties residing within 200 driving Kilometers of each other)
i. Twelve (12) hours’ notice shall be given by the parent entitled to visitation
with the child if visitation will not be exercised for the weekday or weekend.
ii. A minimum of Three (3) days notice shall be given by the parent entitled to
visitation for a holiday if visitation will not be exercised.
iii. A minimum of Fifteen (15) days’ notice shall be given in writing by the
parent entitled to visitation for a period of one week or greater if visitation
will not be exercised.
iv. The parent seeking cancellation shall arrange and pay for babysitting, child
care or other appropriate visitation of the child for the visitation period; to
the extent such expense is due to the cancellation. ANY VISITATION
CANCELLED BY THE NON-CUSTODIAL PARENT SHALL BE FORFEITED, UNLESS THE PARTIES AGREE TO SUBSTITUTE VISITATION. THE REQUIRED CANCELLATION NOTICE IS GIVEN; THE CUSTODIAL PARENT SHALL NOT UNREASONABLY WITHHOLD SUBSTITUTE VISITATION.
27. NOTICE – NONLOCAL (PARTIES NOT RESIDING WITHIN 200 DRIVING
KILOMETERS OF EACH OTHER):
i. A minimum of three days (3 days) notice shall be given by the parent
entitled to visitation for a holiday or special occasion if visitation will not be
exercised. A minimum of Fifteen (15) days’ notice shall be given in writing
by the parent entitled to visitation for Diwali, Christmas, Summer vacations
or an annual visitation period of one (1) week or greater if visitation will not
be exercised. If the cancellation is NOT agreed to by both parents, the
parent seeking cancellation must arrange and pay for child care or other
appropriate supervision of the child for the visitation period, to the extent
such expense is due to the cancellation. ANY VISITATION CANCELLED
BY THE NONCUSTODIAL PARENT SHALL BE FORFEITED, UNLESS
THE PARTIES AGREE TO SUBSTITUTE VISITATION. IF THE
REQUIRED CANCELLATION NOTICE IS GIVEN, THE CUSTODIAL
PARENT SHALL NOT UNREASONABLY WITHHOLD SUBSTITUTE
VISITATION.
ii. ADDITIONAL VISITATION: The Non-custodial parent shall be entitled to
exercise other reasonable visitation in the local of the child’s primary
residence upon reasonable notice to the custodial parent.
28. TRANSPORTATION
A.Local (parties residing within 200 driving Kilometers of each other): The Noncustodial
parent shall pick up the child for visitation and the custodial parent
shall pick up the child after visitation. A third party, agreed to by both parents,
may substitute for one of the parents in transporting the child to and from
visitation. The parties should reasonably consider a parent’s current spouse
or a family member of the child as a substitute. Aparty who moves and thereby
causes an increase of more than thirty (30) Kilometers in driving distance
between the two parents, shall bear responsibility for transportation in absence of Court intervention. The place of pick up and drop of the child shall be agreed to in writing by both the parents. However the place of pick up and drop shall either be the residence of the custodial parent or the family court children’s complex or as ordered by the Hon’ble court.

B.Nonlocal (parties not residing within 200 driving Kilometers of each other):
The court shall decide the issue of transportation on a case by case basis
absent an agreement by the parties.
29.WAITING: Achild shall be picked up or delivered within thirty (30) minutes of the scheduled time of exchange. If the Non-custodial parent is more than thirty (30) minutes late to pick up the child for visitation and creates a hardship as a result, visitation shall be forfeited for that visitation period. If legitimate reasons exist for delay in picking up the child for any weekend or longer visitation, and beginning the visitation the next day does not create a hardship on the custodial parent, the Non-custodial parent may pick up the child at a mutually agreed upon time later in the visitation period. The Non-custodial parent shall give the custodial parent as much notice as reasonably possible of any delay in picking up the child.

 

30. AMENDMENTS: Parties can vary; alter the interim access schedule as per
convenience within a period of one week from the date of presentation of the
petition before the Hon’ble court or within one week from the date of their
meeting with the counselor for mediation whichever is earlier. In the event
parties fail to arrive at a decision and conclude on the interim visitation schedule then the counselor shall draw up an interim visitation schedule and place the same before the Hon’ble court to be made final by an order of the court.
31.OVER NIGHT ACCESS: Court’s are under obligations to consider the child
spending equal time, or substantial and significant time, with each parent. In
making a parenting order the court ‘must consider’ making orders that the child spend equal time, or if not equal then substantial and significant time, with each parent. ‘Substantial and significant time’ is defined to mean, essentially, weekdays and overnight weekends and holidays, times that allow the parent to be involved in the child’s daily routine as well as occasions and events that are of particular significance to the child or the parent child to maintain or consolidate a secure attachment with a parent whose behavior is oriented only to ‘visiting’rather than ‘care-giving’.
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• Children have the right to know and be cared for by both their parents, regard -
less of whether their parents are married, separated, divorced, have never
married or have never lived together; and
• Children have a right to spend time on a regular basis with, and communicate
on a regular basis with, both their parents and other people significant to their
care, welfare and development (such as grandparents and other immediate
family members & relatives);and
• Children have a right to enjoy their culture (including the right to enjoy that
culture with other people who share that culture).
Over Night Access at home of the non-custodial parent should be encouraged at
an early stage so that the children have a close and continuing relationship and get
the love, affection of not only parents but also of grandparents and other immediate
family members like uncle, aunties, cousins etc. The healthy emotional
development of children depends upon their early experience of a continuous,
emotionally available care-giving relationship, through which they are able to form
an organized attachment, and to develop their human capacities for thought and
relationships essentially,
Children have their right to childhood of hopeful existence free of exploitations,
neglect. Children need consistent support system as well as love, hope and
encouragement, all these things and more are required in order to experience
childhood to the fullest and to eventually develop into a healthy, capable adult for the
full and hormonal development of his or her personality children should grow up in a
family environment in an atmosphere of happiness, love and understanding which is
very important for their overall growth and well being. The children should be fully
prepared to live life in society, in the spirit, dignity tolerance, freedom, equality and
solidarity. However young children are subjected to exploitation especially in a
broken marriage where the court has to intervene to protect the rights of the child.
Children have to be ensured that the their right to parental access, right to quality of
life, right to be cared for, and right to freedom of expression is not compromised and
children get love and affection from both parents and grandparents and immediate
family members. They should have a sense of belonging to a healthy family
environment maintaining their heritage so that the genealogy of the child is not lost
after attaining adulthood and they are able to be linked with their ancestors.
Overnight access should therefore be encouraged at an early stage.
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CHAPTER – 3
LOCAL GUIDELINES
(PARTIES RESIDING WITHIN 200 DRIVING KILOMETERS OF EACH OTHER)
C. FINALVISITATION (CHILDREN BETWEEN AGE 0–TO-36 MONTHS)
The following visitation guidelines should balance the needs of both parent and
child, regardless of whether that child has older siblings that enjoy extended
visitation with the Non-custodial parent.
32. WEEKENDS: The Non-custodial parent shall be entitled to overnight weekend
visitation every weekend. For children between 0 to 36 months visitation shall be
between 11.00 A.M. to 2.00 P.M. or 4.30 P.M. to 7.30 P.M. on Saturday and
Sunday and Twice (two times) during weekday between Monday to Friday for
1½ hours (90 Minutes). One of the most important considerations is for
attachment with both parents. It is important for visitation to provide
opportunities to establish a bond between the child and the parent. Generally,
frequency of visitation is given more consideration than duration of visitation.
Making up for less frequent visits by increasing the length of time of visits is not
recommended for infants recommended daily visits, but if this is impractical,
then visits should be spaced no more than two days apart. There is research,
however, to show that overnight visits with the parent can occur, provided that
the parent has been a significant caretaker and a primary attachment figure.
33. WEEKDAY VISITATION: The Non-custodial parent shall be entitled to visitation
two (2) evenings per week during weekday between Monday to Friday for 1½
hours (90 Minutes). These shall be the same two evenings every week and
varied only if the weekday visitation schedule conflicts with the holiday or
vacation schedule. If the parties cannot agree, weekday visitation shall be on
Monday and Wednesday.
34. HOLIDAYS: The non-custodial parent shall be entitled to spend at least 3 Three
hours on the holiday or festival day including 15th August, 26the January, 1st
May (Maharashtra day;) , 2nd October (Gandhi Jayanti), 14th November
(Children’s day) excluding the time of travel. Only where it is not possible to
share during the festival day due to reasons of distance or otherwise. In oddnumbered
years, the Non-custodial parent shall be entitled to spend with the
minor child; in even numbered years, the schedule shall be reversed. A party’s
16
entitlement to Holiday visitation overrides the other party’s right to regularly
scheduled weeknight or weekend visitation. If either or both parties celebrate
other holidays, such holidays should be written down, divided and alternated
each year.
Note : For children aged between 0 to 36 months it shall be open for the custodial
parent to remain present during visitation.
i. Visitation shall be from 11:00 a.m. until 2:00 p.m. or from 4:00pm to 7:00pm on
the official holiday.
ii. Mother’s day Shall be spent with the mother every year with priority over any
other visitation schedule; visitation hours shall be from 11:00 a.m. until 2:00
pm or 4:00 pm to 7:00 pm.
iii.Father’s day shall be spent with the father every year with priority over any
other visitation schedule; visitation hours shall be from 11:00 am. until 2:00
p.m. or 4:00 pm to 7:00 pm
iv.Diwali / Eid / Moharram / Makarsakaranti / Janmashtmi/Mahavir Jayanti /
Mahashivratri / Ramnavi / Parsi New Year / Dussera / Laxmipoojan / Bhau
Bheej / Gurunanak Jayanti / Raksha Bandhan / Navratri / Ganesh Chaturthi /
Anant Chaturthi / Holi visitation to the non-custodial parent shall be for a period
of 3 three hours excluding travelling time and timings shall be decided
between the parties mutually.
35. FESTIVALS WEEKEND OVERNIGHTACCESS : Festivals which last for more
than seven days especially Navratri, Ganpati and Ramzan and for which long
holidays are not available to the child the non-custodial parent shall be entitled to
one weekend overnight stay during this stretch of festival. Aparty’s entitlement to
this festival weekend overnight stay overrides the other party’s right to regularly
scheduled weeknight or weekend visitation .
36. MOTHER’S BIRTHDAY: shall be spent with the mother every year. If the mother
is the Non-custodial parent and the mother’s birthday is on Sunday, Monday,
Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the mother’s birthday is on Saturday or Sunday, visitation shall be
from 11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.
37. FATHER’S BIRTHDAY: shall be spent with the father every year. If the father is
the Non-custodial parent and the father’s birthday is on Sunday, Monday,
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Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the father’s birthday is on Saturday or Sunday, visitation shall be from
11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.
38. CHILD’S BIRTHDAY: The child shall celebrate his or her birthday with the Noncustodial
parent in odd-numbered years and the custodial parent in evennumbered
years. In years that the child spends his or her birthday with the Noncustodial
parent, if the child’s birthday falls on Sunday, Monday, Tuesday,
Wednesday, or Thursday, visitation shall be from 5:00 p.m. until 8:00 p.m.; if the
child’s birthday falls on Saturday or Sunday, visitation shall be from 11:00 a.m. to
4.00 p.m.. The parent holding a birthday party for the child may wish to consider
inviting the other parent.
39. ANNUAL VISITATION FOR CHILDREN (UNDER AGED 0-TO-36 MONTHS):
Unless otherwise agreed to by the parties, regular weekend and weekday
visitation shall be maintained year round in lieu of a designated annual visitation
period.
D. FINALVISITATION (CHILDREN 36 MONTHS AND OLDER)
40. WEEKENDS: The Non-custodial parent shall be entitled to weekend visitation
every other weekend. Visitation shall begin Friday at 6:00 p.m. and end at 6:00
p.m. on Sunday. If parties wish to avail continuous every week access then every
weekend access shall begin from Friday at 6.00 p.m. and end on Saturday 6.00
p.m. or Saturday 6.00 p.m. to Sunday 6.00 p.m. It is not the responsibility of the
custodial parent to provide food or shelter for the child during the Non-custodial
parent’s visitation.
41. WEEKDAY VISITATION: If the parties reside within thirty (30) Kilometers driving
distance of each other, the Non-custodial parent shall have visitation two (2)
evening per week for 2 two hours between 6.00 p.m. to 8.00 p.m., but shall
exercise the weekday visitation in the locale of the child’s primary residence or
within the radius of 10 ten kilometers. The preceding sentence shall not preclude
occasional travel beyond the thirty (30) Kilometers for special weekday events.
The weekday visitation shall be on the same evening each week and varied only
if it conflicts with the holiday or vacation schedule. If the parties cannot agree on
the weeknight and if there are no scheduled activities for Wednesday, it shall be
Wednesday evening. If there are activities scheduled for Wednesday, the Noncustodial
parent shall have first choice of an alternate weekday for weekday
visitation.
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42. HOLIDAYS: The non-custodial parent shall be entitled to spend at least 4 Four
hours on the holiday or festival day including 15th August, 26the January, 1st
May (Maharashtra day ) , 2nd October (Gandhi Jayanti), 14th November
(Children’s day) excluding the time of travel. Only where it is not possible to
share during the festival day due to reasons of distance or otherwise. In oddnumbered
years, the Non-custodial parent shall be entitled to spend with the
minor child; in even numbered years, the schedule shall be reversed. A party’s
entitlement to Holiday visitation overrides the other party’s right to regularly
scheduled weeknight or weekend visitation. If the parties celebrate religious
holidays other than those defined in sections A and B below, those religious
holidays shall be mutually agreed upon in writing, divided, and alternated each
year. In the absence of an agreement, the court shall allocate those religious
holidays between the parties..
i. Visitation shall be from 11:00 a.m. until 3:00 p.m. or 4.00 p.m. to 8.00 p.m. on
the official holiday.
ii. Mother’s day Shall be spent with the mother every year with priority over any
other visitation schedule; visitation hours shall be from 11:00 a.m. until 3:00
p.m. or 4.00 p.m. to 8.00 p.m. Father’s day shall be spent with the father every
year with priority over any other visitation schedule; visitation hours shall be
from 11:00 a.m. until 3:00 p.m. or 4.00 p.m. to 8.00 p.m.
iii.Diwali / EId / Moharram / Makarsakaranti / Janmashtmi / Mahavir Jayanti /
Mahashivratri / Ramnavi / Parsi New Year / Dussera / Laxmi poojan / Bhau
Bheej / Gurunanak Jayanti / Raksha Bandhan / Navratri / Ganesh Chaturthi /
Anant Chaturthi / Holi visitation to the non-custodial parent shall be for a
period of 4 Four hours excluding travelling time and timings shall be decided
between the parties mutually.
NOTE : Non-custodial parent shall be entitled to take the child at his residence
during this period of access.
43. FESTIVALS WEEKEND OVERNIGHTACCESS : Festivals which last for more
than seven days especially Navratri, Ganpati and Ramzan and for which long
holidays are not available to the child the non-custodial parent shall be entitled to
one weekend overnight stay during this stretch of festival. Aparty’s entitlement to
this festival weekend overnight stay overrides the other party’s right to regularly
scheduled weeknight or weekend visitation.
19
44. FIFTY% VACATION: The non custodial parent shall be entitled to 50% of each
vacation during the year the child has vacations for Diwali, Christmas and
Summer.
45. MOTHER’S BIRTHDAY: shall be spent with the mother every year. If the mother
is the Non-custodial parent and the mother’s birthday is on Sunday, Monday,
Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the mother’s birthday is on Saturday or Sunday, visitation shall be
from 11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.
46. FATHER’S BIRTHDAY: shall be spent with the father every year. If the father is
the Non-custodial parent and the father’s birthday is on Sunday, Monday,
Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the father’s birthday is on Saturday or Sunday, visitation shall be from
11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.
47. CHILD’S BIRTHDAY: The child shall celebrate his or her birthday with the Noncustodial
parent in odd-numbered years and the custodial parent in evennumbered
years. In years that the child spends his or her birthday with the Noncustodial
parent, if the child’s birthday falls on Sunday, Monday, Tuesday,
Wednesday, or Thursday, visitation shall be from 5:00 p.m. until 8:00 p.m.; if the
child’s birthday falls on Saturday or Sunday, visitation shall be from 11:00 a.m. to
4.00 p.m.. The parent holding a birthday party for the child may wish to consider
inviting the other parent.
E.CHILDREN IN DIFFERENTAGE GROUPINGS:
i. If there are two (2) or more children whose ages span different age
groupings entitling the children to different visitation periods with the Noncustodial
parent, then the younger children shall get the benefit of the
oldest child’s visitation schedule.
ii. THIS PROVISION DOES NOTAPPLYTO CHILDREN AGED BETWEEN 0
TO 36 MONTHS. PARENTS OF A CHILD AGED BETWEEN 0 TO 36
MONTHS MUST FOLLOW THE VISITATION SCHEDULE FOR THAT
CHILD REGARDLESS OF WHETHER OR NOTTHE CHILD HAS OLDER
SIBLINGS ON ADIFFERENTSCHEDULE.
20
48. SCHEDULING ANNUALVACATION :
i. The Non-custodial parent shall have first choice of annual vacation visitation
and shall designate such choice in writing no later than March 1 of each year.
Subject to the Non-custodial parent parent’s designated choice on or before
March 1, the custodial parent shall designate in writing his or her choice for
annual vacation by March 15th of each year.
ii. The custodial parent’s annual vacation shall be scheduled around the Noncustodial
parent’s annual vacation and may override no more than one (1)
weekend and three (3) weeknight regularly scheduled visitation periods of
the Non-custodial parent.
iii. A parent’s first choice of annual vacation shall not interfere with the other
parent’s entitlement to the child’s birthday or the Diwali Holiday.
iv. Unless specifically prohibited by Court order, either parent may temporarily
remove the child from the jurisdiction of the court for purposes of annual
visitation only if the parent travelling with the child provides the other parent
with a written general itinerary and phone numbers where the child can be
contacted during the vacation.
v. Annual vacation shall not conflict with the school calendar.
21
CHAPTER – 4
NON-LOCAL GUIDELINES
(PARTIES NOT RESIDING WITHIN 200 DRIVING KILOMETERS OF EACH
OTHER)
49. VISITATION (CHILDREN AGED BETWEEN 0 TO 36 MONTHS) Visitation for
children under 36 months old shall be established by the court on a case-bycase
basis.
50. ADDITIONAL VISITATION: The Non-custodial parent shall be entitled to
exercise other reasonable visitation in the local of the child’s primary residence
upon reasonable notice to the custodial parent.
51. VISITATION (CHILDREN AGED 36 MONTHS & OLDER)
52. WEEKENDS: The Non-custodial parent shall be entitled to at least one weekend
visitation every week. Visitation shall begin either on Saturday and / or Sunday at
11:00 a.m. and end at 6:00 p.m. It shall be open for the parties to work out more
than one visitation per week as per mutual agreement.
53. HOLIDAYS: If the parties celebrate religious holidays other than those defined in
sections 41 above, those religious holidays shall be mutually agreed upon in
writing, divided, and alternated each year. In the absence of an agreement, the
court shall allocate those religious holidays between the parties.
54. FIFTY% VACATION: The non custodial parent shall be entitled to 50% of each
vacation during the year the child has such as Diwali, Christmas and Summer
vacation.
Note : In case non-custodial parent is unable to avail vacation access during a
particular year he/she shall be entitled to be compensated by full vacation
sharing during the subsequent year.
55. ANNUALSUMMER VACATION: Visitation shall be as follows:
A. CHILDREN IN DIFFERENTAGE GROUPINGS: If there are two (2) or more
children whose ages span different age groupings entitling the children to
different visitation periods with the Non-custodial parent, the younger children
get the benefit of the oldest child’s visitation schedule. THIS PROVISION
DOES NOT APPLY TO CHILDREN UNDER AGED BETWEEN 0 TO 36

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