IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: January 20, 2010
Date of Order: February 08, 2010
Sumana Bhasin …Petitioners
Through: Ms. Malvika Rajkotia with Mr. Ranjay N, Advocates
Neeraj Bhasin …Respondent
Through: Ms. Anu Narula, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
1. By present petition under Article 227 of the Constitution of India the petitioner has assailed an order dated 18th November 2009 passed by the learned Guardian Judge in Guardianship Petition No.276 of 2008. The learned trial court after noting down the conduct of the petitioner in not honouring and complying with order dated 13th October 2009 granting visitation rights to respondent to meet the children, directed that in case of any resistance put on the part of petitioner in compliance of the order, the SHO of the concerned area shall provide necessary assistance for execution of the order passed by the Court in favour of respondent herein.
2. The contention of the petitioner is that the petitioner was more than willing to comply
with the order dated 13th October 2009, however, she had not been able to convince the children
to facilitate the visitation as per the orders of the Court and it were children who were resisting
the visitation rights. It is submitted that the elder son in this case was 15 years old and he
refused to go to father (respondent herein). The younger child was also unwilling to go to the
father and changed his mind and did not like to meet his father.
3. Since the present petition does not assail the order dated 13th October 2009 passed by
learned Guardianship Court, after interviewing the children and after considering all aspects of
welfare of children, this Court cannot go into the issue of visitation rights and the only issue
before the Court is whether granting of police help by the trial court was justified or not.
4. The elder child in this case was born on 2nd February 1994 and the younger child was born on 14th
October 2002. The younger son even on this date is hardly around seven years old.
Respondent herein has placed on record the SMSs and E-mails exchanged between father and
elder son and some of SMSs and e-mails between the petitioner and respondent and some of the
drawings and scribbling made by younger son and photographs which ex facie show that the
both the children had no ill-will towards the father and it was the mother (the petitioner herein)
who was making efforts to see that the father should not meet the children and she wanted to
create hindrance and that is why after noting down entire conduct of the petitioner, the learned
Guardianship Court was compelled to pass an order that let the order be executed with the help
of local police.
5. If the petitioner was aggrieved by the order of learned Guardianship Court granting
visitation rights, the petitioner was at liberty to approach the Court against the visitation rights.
Both the children are living with the petitioner. She being the mother was in a position to
influence the children and prevail upon the wishes of the children. It is not in the welfare of
children that when the parties are estranged, the party with whom the children are staying,
should create ill-will against other party and poison the minds of children against other party. It is
for this reason that jurisdiction is given to the Guardianship Court to consider the wishes of
children and thereafter pass an appropriate order for the welfare of the children and to allow
visitation rights or custody keeping in mind the rights of the parties as well as welfare of children.
If the orders so passed by the Guardianship Court are frustrated by one of the parties by its
conduct or by disobeying the order or by influencing the children or manipulating with the
children, then such orders passed by the Guardianship Court would be merely paper orders
/paper decrees and the wishes of the person having custody shall always overrule the Court
orders. The very existence of the Guardianship Court shall become meaningless. Since the
welfare of children is uppermost in the mind of Guardianship Court and the children are also
required to be saved from one sided influence or an estranged parent, it is necessary that orders
passed by the Guardianship Court are implemented in true spirits. If the one of the parties insists
on non implementation of the order, there are only two ways, either the order should be got
implemented with the help of enforcement agency or the erring party should be hauled up for
contempt of Court and should be sent to jail. In the case in hand, since the petitioner was mother
and since the children were living with her, the trial court was right in getting the order enforced
through coercive measures instead of sending the case for contempt so that she may land up in
jail. I, therefore, find no infirmity in the order of the trial court.
6. However, since the petitioner before this Court had shown unwillingness to comply with
the order dated 13th December, 2009, the order of the Court below dated 18th November 2009
shall remain suspended so long as the petitioner respects the order of the trial court and obeys it.
It would be for the benefit of children that the petitioner obeys the order. However, in case the
petitioner still does not obey the order, the elder child who is around 15 years of age shall not be
compelled to go with the father but the younger child who is admittedly 7 years of age shall be
handed over to the respondent in accordance with the order relating to visitation rights, taking
help of local police.
7. The petition stands disposed of with above directions.
February 08, 2010 SHIV NARAYAN DHINGRA J.