Don’t deny visitation to Father

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.

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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.

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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.

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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.

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