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SC Judgement: Don’t deny visitation to husband default order

SUPREME COURT OF INDIA

 

Citation: 2008 AIR 471  2007(11  )SCR854   2007(12  )SCALE758

 

 

 

 

Judgement

 

CASE NO.:
Appeal (civil)  5088-5097 of 2007

PETITIONER:
Mohan Kumar Rayana

RESPONDENT:
Komal Mohan Rayana

DATE OF JUDGMENT: 01/11/2007

BENCH:
C.K.THAKKER & ALTAMAS KABIR

JUDGMENT:
J U D G M E N T 

CIVIL APPEAL NOS.5088-5097 OF 2007
(Arising out of S.L.P.( C) Nos.15167-15176 of 2007)


   Altamas Kabir, J.


1.	  Leave granted.


2	 Since both the parties to the special leave petitions 
are before us, Notice of the Appeals is waived on behalf 
of the respondent, Komal Mohan Rayana.
3	  The appeals arise out of circumstances wherein owing 
to disputes and differences between a married couple, the 
child born of the wedlock has become the object of a 
tussle for custody between the two parents.
4. The subject matter of these appeals are four orders 
passed by the Bombay High Court on 12th July 2007, 19th 
July 2007, 27th July 2007 and 6th August 2007 in two 
appeals from a petition No.D-65/2005 before the Family 
Court.  In order to appreciate the circumstances in which 
these orders came to be passed, it will be necessary to 
state a few facts leading to the commencement of the 
proceedings before the Family Court. 

5.	Admittedly, the appellant herein, who is the husband 
of the respondent, married the respondent on 2nd March 
2002. A daughter was born to them and she was named 
Anisha. Initially there were no disputes as such between 
the parties but after the daughters birth, the atmosphere 
in the marital home began to change.  We shall not go into 
the causes as alleged by the respondent since such 
allegations are not relevant for our purpose, but we can 
only observe that one of the reasons given by the 
respondent for the changed circumstances was the change in 
behaviour of the appellant towards her, on account of 
addiction to alcohol in the company of his friends. 

6.	In any event, there appears to have been some marital 
discord, which resulted in the respondent leaving the 
matrimonial house in July 2004 with her minor daughter and 
seeking shelter with her parents at Bandra.  According to 
the respondent, during the said period she continued to 
send Anisha to the Kinder Campus School at Chembur, the 
area where the appellant was residing and permitted him on 
occasions to keep back Anisha at his residence. The 
respondent has alleged that in October 2005, taking 
advantage of such a situation, the appellant kept Anisha 
back with him and did not return her to the respondents 
custody. This compelled the respondent to meet her 
daughter in the school campus, but since this arrangement 
did not also work out, in the last week of November 2005, 
she approached the Chembur police and with their help got 
back the custody of her daughter.  A series of allegations 
were thereafter made that on 30th November, 2005 the 
appellant, with the help of some of his associates, 
forcibly removed Anisha from the respondents custody and 
made her completely inaccessible to the respondent. It is 
in such compelling circumstances that she moved the Family 
Court seeking custody of her minor daughter under Section 
6 of the Hindu Minority and Guardianship Act, 1956 read 
with Ss.7 and 25 of the Guardians & Wards Act, 1890.
7.	The appellant herein also filed a Custody Petition, 
being D-66 of 2005, and both the applications were taken 
up for hearing together by the learned Family Court. By 
its judgment dated 2nd February 2007 the Family Court 
dismissed the appellants application for custody and 
allowed the application filed by the respdondent by 
passing the following order :
ORDER
The Respondent/Mohankumar Rayana is directed 
to hand over custody of the minor daughter 
Anisha to the petitioner/mother Komal Rayana 
immediately after completion of her final 
terms of the current academic session 2006-
2007.

The Respondent/father shall take all the 
steps to provide all facilities to the minor 
daughter to enjoy her extra curricular 
activities and studies.

After the child Anisha goes to the custody 
of the mother as ordered above, the 
Respondent/father would be at liberty and 
privilege to avail her access every 
alternate weekends, meet her at school at 
any time and share 50% of her school 
vacations, as per mutual arrangement with 
the petitioner/mother.

The petitioner/mother should in consultation 
with the Respondent/father decide the 
question of her further academic education 
and she should not move the child out of the 
jurisdiction of the Court without its prior 
permission and of course after due 
intimation to the Respondent/father.

The father/respondent shall meet all the 
expenses for the education, food and clothes 
etc. of the minor daughter Anisha and the 
Petitioner/mother of her own accord may 
contribute to the same for the child and she 
should not be prohibited by the 
respondent/father from giving the child 
Anisha anything for her own comfort and 
pleasant living.  This arrangement for 
custody is made on the basis of the prior 
consideration for the welfare of the minor 
Anisha and in the event of change of 
circumstances  either  of the parents shall 
be at liberty and privilege to approach this 
Court for fresh direction on the basis of 
changed circumstances.

The custody petition D-65/05 moved by the 
Respondent/father Mohan Kumar Rayana stands 
dismissed  with visitation and access rights 
as ordered above.


8. Aggrieved by the said Judgment and order of the Family 
Court, the appellant filed Family Court Appeal No. 29/2007 
before the Bombay High Court on 23.2.2007 and the same was 
admitted on 7th March, 2007 and was said to have been per-
emptorily fixed for final hearing on 26th March, 2007. On 
26th March, 2007 the respondent also filed an appeal, 
being Family Court Appeal No.61/2007, challenging the 
operation of the judgment of the Family Court dated 
2.2.2007 granting access to the appellant  to meet Anisha. 
The said appeal was also admitted on 3rd May, 2007. On the 
same day, the directions contained in the order of the 
Family Court dated 2.2.07 regarding access to the 
appellant to meet Anisha, were modified by the High Court 
by directing that the minor child would be available to 
the appellant as and when he was physically present in 
Bombay at his house.  It was also stipulated that whenever 
the appellant was not available in Bombay the child should 
remain with the respondent.  It was specifically mentioned 
that the child should not be removed by the appellant out 
of Bombay for any reason whatsoever, except in the 
circumstances mentioned in the order.

9.	A Special Leave Petition was filed by the appellant 
against the order of the High Court dated 3.5.07 and the 
same was disposed of on 18.6.07 with a direction upon the 
High Court to hear the Family Court appeal expeditiously.

10.	Certain circumstances intervened which prompted the 
Division Bench of the Bombay High Court to modify its 
order dated 3.5.07 on 12.7.07 by reducing the access 
granted to the appellant and limited such access only to 
the day time on the ensuing Saturday and Sunday.  The said 
order passed in the two above-mentioned appeals is one of 
the orders forming the subject matter of the appeals 
before us.

11.	Subsequently, after interviewing the parties and the 
minor child, the High Court passed a further order on 
19.7.07 directing the appellant and the respondent to 
visit a psychiatrist with the child and to obtain a report 
from him.  The access granted to the appellant on 
Saturdays and Sundays from 9 A.M. to 9 P.M. was continued. 
The said order passed in application No.81/2007 filed by 
the respondent herein in Family Court Appeal No.61/2007, 
is one of the other orders which form the subject matter 
of the present appeals before us.

12.	A third order was passed by the Bombay High Court on 
27.7.07 directing the appellant and the respondent to seek 
appointment with a psychiatrist within a week, and he was 
also directed to submit his report within 2 weeks after 
the parties were examined.  The interim arrangement made 
earlier was directed to continue. The said order is the 
third order which is impugned in the present appeals. The 
fourth order impugned in these appeals was passed on 
6.8.07 in the pending Civil Application No.81/2007, 
whereby, in view of the intervening circumstances, the 
High Court passed the following order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.61 OF 2007
ALONGWITH
CIVIL APPLICATION NO.81 OF 2007
ALONGWITH
FAMILY COURT APPEAL NO.29 OF 2007

Mr. R.T. Lalwani, Advocate for the 
applicant/wife
Mr. Kevic Settalwad Advocate i/b D.H. Law 
& Associates for Respondent/husband

CORAM :  J.N. PATEL AND A.S. SAYED, JJ
DATE  :	  AUGUST 6, 2007
P.C. (Per J.N. Patel,J):

	Heard.  We find from the conduct of 
the parties that the parties are 
repeatedly moving this Court in the matter 
on one pretext or the other. It is highly 
impossible for the Court to monitor each 
and everything.  This being matrimonial 
matter relating to access of the child, 
the Court has issued directions from time 
to time and it is expected that both the 
parties shall comply with the directions 
of this Court and facilitate each other 
and cooperate with each other in the 
matter. But it appears that the parties 
are trying to interpret the order in the 
manner they want, without being concerned 
about the welfare of the child, which is 
of paramount importance.  This Court has 
suggested to the parties to go for 
counselling and already a psychiatric of 
J.J. Hospital is appointed for the same.  
Recent development is represented by the 
counsel for the parties shows that on the 
last date of access there was some quarrel 
between the parties, which lead to 
hospitalisation of the wife, for injuries 
suffered by her and she is presently 
admitted in Lilawati Hospital and likely 
to be discharged today or tomorrow.

2.	In our considered opinion the 
respondent/wife deserves an opportunity to 
place her affidavit on record.

3.	In view of the recent development as 
brought to our notice, we are left with no 
option, but hold all our interim 
orders/relief to grant access to father, 
in abeyance till this Court  receives 
report of the psychiatrist. We make it 
clear that the parties, if fail to 
cooperate with the Court in resolving the 
issue, this Court would remove the matter 
from its board.  It is not expected from 
the parties to resolve their domestic 
quarrel in the court and ask the Court to 
adjudicate each and every issue, whether 
minor or major, relevant or irrelevant.  
We hope that the parties would maintain 
some discipline in observing the orders of 
the Court and cooperate.

4. Parties are at liberty to mention the 
matter only after they comply with the 
orders of this Court and report of the 
psychiatrist is received. Thereafter this 
Court proposes to pass the further orders. 
The matter stands adjourned for 4 weeks. 
We make it clear that on the mean time we 
would not entertain any application for 
interim relief, or for permitting the 
parties to meet the child, or to take 
matter on board, which has led this Court 
to hold all orders passed earlier in 
abeyance.

(A.A.SAYED,J)			(J.N. PATEL,J)
TRUE COPY


13. By the aforesaid order all access to the appellant was 
kept in abeyance till the Court received the report of the 
psychiatrist. The main grievance of the appellant is that 
by the order of 6.8.07 he was completely denied any access 
to the minor child. He was also aggrieved by the reduction 
of access time by the other orders as well. 

14.	 Since these appeals have been preferred against the 
interim orders passed by the Bombay High Court in the two 
pending Family Court Appeals, learned counsel for the 
appellant, submitted that in these appeals the only 
grievance of the appellant was with regard to denial of 
complete access to his child.  He prayed that the 
visitation rights which had been granted by the Family 
Court be restored during the pendency of the two appeals 
in the Bombay High Court.

15.	Since we are only called upon to decide the said 
issue, we are not required to go into any other question 
relating to the appeals pending before the Bombay High 
Court. We have met the appellant, the respondent and also 
the minor child, Anisha, separately, in chamber, to 
ascertain what each had to say regarding the making of 
interim arrangements to allow the appellant to have access 
to Anisha.

16.	After having looked through the materials on record 
and after considering the views of the parties and the 
minor girl, we are of the view that the appellant should 
not be denied complete access to his minor child, even if 
there has been a default in complying with the directions 
of the High Court and that pending the disposal of the 
appeals he should be allowed to have access to his minor 
child, at least to some extent.
17.	We, accordingly, dispose of these appeals with the 
following directions :-

i)	Since the welfare of a minor child is involved, 
the High Court is requested to try and dispose 
of the pending appeals as expeditiously as 
possible, but preferably within three months 
from the date of communication of this order;
ii)	The appellant/father of the minor, will be 
entitled to have access to Anisha on weekends on 
Saturdays and Sundays and will be entitled, if 
the child is willing, to keep her with him on 
Saturday night.  For the said purpose, the 
appellant shall receive the child from the 
respondent at 10.00 a.m. on Saturday from her 
residence at Bandra or from a mutually agreed 
upon venue and shall return the child to the 
respondent on Sunday by 2.00 p.m. In the event 
Anisha is unwilling to stay with the appellant 
overnight, the appellant will then make her over 
to the respondent on Saturday itself by 9.00 
p.m.; in that case, the appellant will be 
entitled to take Anisha out on Sunday also 
between 9.00 a.m. to 5.00 p.m.;
iii)	Both the appellant as well as the respondent 
must co-operate with each other in making the 
aforesaid arrangements work.  The respondent 
shall not prevent the appellant from having 
access to Anisha in the manner indicated above. 
Likewise, once Anisha is handed over to the 
appellant he too must honour the aforesaid 
arrangements and not keep Anisha with him beyond 
the time stipulated. In the event of either of 
the parties violating the aforesaid arrangement, 
the other party would be at liberty to pray for 
appropriate orders before the Bombay High Court 
in the pending appeals;
iv)	The aforesaid arrangement is being made so that 
the appellant can have access to his minor 
daughter and also to ensure that the childs 
education does not suffer in any way during the 
week.


18.	The appeals are, accordingly, disposed of with the 
aforesaid modifications of the interim orders passed by 
the High Court and save as aforesaid, all the other 
interim directions shall continue to remain operative.

19.	Since, in terms of our earlier directions, the 
expenses of the respondent and Anisha for coming from 
Bombay to Delhi and other litigation expenses is said to 
have been deposited by the appellant with the Registry of 
this Court, the respondent shall be entitled to withdraw 
the same. There shall be no further order as to costs in 
these appeals.


 

Categories: Child Custody Tags:
  1. amar
    November 5, 2011 at 1:09 pm

    have anybody used this.. order…….. and how in which circumstance….

    • R. K
      November 5, 2011 at 2:45 pm

      Yes Amar, there are plenty of users using this CITATION to get CHILD VISITATION…….Even no court (if Fought properly and sensibly ) can stop you meeting your children. What is you case about???

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