IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : February 14, 2017
VIKAS AGARWAL ….. Appellant
Represented by: Mr.Arvind Pandey, Advocate
GEETI MATHUR ….. Respondent
Represented by: Ms.Sonam Nagrath, Advocate with Ms.Mamta Mayar, Advocate
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MR. JUSTICE YOGESH KHANNA
PRADEEP NANDRAJOG, J. (Oral)
1. Confronted with the claim of a parent to have either custody or visitation rights to a child born to the couple, one must proceed on a presumption that it is in the best interest of the child for the two parents to equally share parental responsibility of the child, while determining the best interest of the child.
2. The primary considerations would be : (a) ensuring benefit to the child of having to spend significant time with both parents to develop a meaningful relationship; and when there are grandparents, uncles, aunties, cousins etc., overnight access so that the child gets love and affection from the extended family; (b) ensuring the need to protect the child from psychological harm.
3. The number of divorce cases across all sections of the society are on the increase resulting in rise of bitter child custody battles. Often the innocent children are used as tools of vengeance by vindictive litigants. A perusal of Article 39 (e) & (f) of the Constitution of India would guide that of the various fundamental rights of a child, one valuable right is to get love and affection from both parents, right to quality of life, right to be cared and the right to develop a sense of belonging.
4. In the aforesaid backdrop we note that the appellant and the respondent were married on April 30, 1997 and were blessed with a baby girl on July 15, 2003. Matrimonial disputes surfaced in the year 2005. A settlement agreement was entered into between the parties on February 03, 2010. Parties obtained divorce by mutual consent. By consent, custody of the female child was entrusted to the appellant with visitation and interim custody rights of the respondent recorded between the parties. The agreement recorded that if the appellant remarried, the respondent would have a right to the custody of the female child.
5. Appellant got remarried on June 02, 2013. The respondent took custody of the female child on June 11, 2013. She denied visitation rights to the appellant on the ground that the settlement agreement between the parties had expressly mentioned her visitation rights till the female child was in the custody of the father, but there was an omission to give any visitation rights to the appellant upon the happening of the condition i.e. he getting remarried, warranting custody of the female child to be entrusted to the respondent.
6. The appellant filed an application under Section 26 of the Hindu Marriage Act, 1955 seeking visitation rights and interim custody during vacation period. Vide impugned order dated October 17, 2016, noting that the child evinces no desire to even talk to the father, learned Judge has granted only visitation rights on the third Saturday of each month. The meeting has been directed to take place in the family court complex. Two hours is the visitation period.
7. The impugned order records meetings held by the learned Judge with the child. It is recorded that the child does not desire to meet the father.
8. Now, what baffles this Court is the fact that for three years, commencing from February, 2010 till June 11, 2013, the female child lived happily with the father. The mother had liberal visitation rights and even interim custody during vacation period. It is not the case of the mother that during this period of three years the child ever complained anything to her concerning her father’s behaviour. Surprisingly within six months of the custody being with the mother, the attitude of the child turned not only cold but positively hostile towards the father.
9. Regretfully, the learned Judge Family Court has not pondered to find the reason for this sudden behavioural change in the child. Has the mother poisoned the mind of the child? An attempt ought to have been made to unravel the truth.
10. The approach in law being, as far as possible, to ensure the child meeting both parents and spending quality time with both, instant case warranted the learned Judge Family Court to direct the parents to access a child counsellor and seek a report from the child counsellor. Help of a trained person who understands the behaviour of a child and the personality of a child was warranted in the instant case. Besides, two counsellors being attached with each family court in Delhi, the learned Judge ought to have taken the help of the counsellors as well. Directions should have been issued to the child to interact with the counsellors and the opinion of the counsellors used by the learned Judge.
11. Since this Court does not have family counsellors attached, the best course available is to restore Guardianship Petition No.24/2014 in the Court of Sh.B.R.Kedia, Principal Judge, Family Court, Shahdara with a direction that the learned Judge would identify a child counsellor within two weeks of receipt of the present order, (the fee of the counsellor to be borne by the appellant). The female child shall be taken to the counsellor by the respondent and should the counsellor desire a joint meeting with the couple, the appellant and the respondent would meet the counsellor.
12. Report would be obtained from the counsellor and keeping in view the report the Guardianship Petition would be decided afresh within a period of four months of the date of receipt of the present order.
13. Till then the visitation rights granted under the impugned order to the appellant shall continue.
14. The parties shall appear before the learned Judge Family Court on February 27, 2017. The Registry shall send a copy of the present order to the Family Court concerned through urgent messenger forthwith.
15. Dasti to learned counsel for the parties.
16. No cost.
CM No.43096/2016 Dismissed as infructuous.
(PRADEEP NANDRAJOG) JUDGE
(YOGESH KHANNA) JUDGE
FEBRUARY 14, 2017