Mother will not get custody of child always

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5700 OF 2017

Anirudha Herwadkar
V/s.
Namita Herwadkar

CORAM : A.M.BADAR J.

DATED : 29th May 2017.

1 By this petition, petitioner-father of six and half years old female child Janhavi is challenging the order dated 25th April 2017 passed by the learned Family Court, Bandra in Petition No.D­ 77 of 2012 filed by the respondent herein ­mother of the female child named Janhavi.

2 The impugned order dated 25th April 2017 is directing the petitioner-father to give access to the respondent-mother during summer vacation for the period from 29th May 2017 to 3rd June 2017 by taking minor female child Janhavi from the Marriage Counselor attached to the Family Court, on 29th May 2017.

3 Heard the learned Advocate appearing for the petitioner-father of Ms.Janhavi. She argued that Ms.Janhavi is taking education in IInd standard. It is submitted that marriage between the parties was solemnized in the year 2007 and Janhavi was born out of this wedlock in the year 2010. The learned Advocate for the petitioner-father further argued that finally on 23/03/2012, respondent-mother deserted the petitioner-father so also Ms.Janhavi, which has resulted in filing of the petition for divorce as also for permanent custody by the petitioner-father before the Family Court. It is further argued that during pendency of this petition, access was regularly given and Ms.Janhavi was used to be given in custody of the respondent-mother from time to time as per agreed terms between the parties. It is submitted that Ms.Janhavi used to be with her mother on first and third Saturday, so also in winter and summer vacation.

4 According to the learned Advocate for the petitioner-father on 28th January 2017 at the premises of residence of the petitioner, Ms.Janhavi was traumatized by the respondent-mother. She was then medically examined by the petitioner on 28th January 2017 itself and she was found to have suffered injures. Reliance is placed on affidavit on record page 169 to demonstrate how Ms.Janhavi came to be injured at the hands of the respondent-mother. It is further argued that the same incident came to be repeated on 18th February 2017 also and, therefore, the petitioner-father got his minor daughter Janhavi medically examined. My attention is drawn to injury certificate at page 162 and 180 of the record apart from pleadings in affidavit. With this, the learned Advocate appearing for the petitioner vehemently argued that the application for recall of access filed by the petitioner ought to have been granted by the leaned Family Court instead of granting access to the respondent-mother in the summer vacation. It is further argued that though the learned Judge of the Family Court has accepted the contention of the petitioner-father that Ms.Janhavi needs to be taken to Child Psychologist for her psychological evaluation in order to ascertain the reason of her refusal to join company of her mother, the learned Judge erred in appointing Dr.Harish Shetty for this purpose. It is pointed out that Dr.Harish Shetty is a qualified Child Psychiatric and not the Child Psychologist. The learned Advocate for the petitioner further submitted a list of expert Child Psychologists and contended that the learned Judge of the Family Court ought to have appointed some Child Psychologist for psychological evaluation of Ms.Janhavi in order to ascertain why she is not ready to go with her mother during the period of access. It is further argued that granting access for summer vacation without waiting for report of the Child Psychologist is totally contrary to the interest of the minor female child.

5 The documents tendered by the learned Advocate for the petitioner during the arguments i.e. Bio­Data of Dr.Harish Shetty and list of Expert Child Psychologists are taken on record.

6 I have also heard the learned Advocate appearing for the respondent-mother of minor female child Ms.Janhavi. He drew my attention to the modified consent terms on record page 167 and contended that this modification in the consent terms was done on 16th February 2017. The learned Advocate argued that if really Ms.Janhavi was physically injured by her mother on 28th January 2017, then nothing prevented the petitioner-father from agitating this grievance, particularly when consent terms were modified on 16th February 2017. The learned Advocate further argued that as alleged by the petitioner-father of Ms.Janhavi one of the incident of physical torture to Ms.Janhavi took place in presence of the Marriage Counselor attached to the Family Court. However, the petitioner-father has not placed on record any evidence to demonstrate that such incident took place within the premises of the Family Court. Record of that event, if any, made by the Marriage Counselor is not placed on record, nor an affidavit of the Marriage Counselor is produced by the petitioner-father. It is further argued on behalf of the respondent-mother that on 28th January 2017 and 18th February 2017 or immediately prior to that Ms.Janhavi was not in custody of the respondent-mother. As such, false allegations are made with ulterior motive to the effect that Ms.Janhavi was traumatized by her own mother. It is further argued by the learned Advocate appearing for the respondentmother that access to Ms.Janhavi by her mother was regularly given since pendency of legal proceedings and at no point of time, any complaint of ill­treatment to Ms.Janhavi by her mother was made. No adverse report was ever placed on record. It is further argued that the petitioner had, in fact, subjected Ms.Janhavi for psychological evaluation which prompted her mother to move an application and accordingly, in the impugned order it is observed that an undertaking was given by the father that he will not make his daughter to undergo psychological evaluation. With this, the learned Advocate for the respondent argued that as access by mother to Ms.Janhavi was a regular phenomenon, there is no question of grant of ad­interim stay to the impugned order, so far as access by him to minor female child is concerned.

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7 I have carefully considered the rival submissions and also perused the record made available.

8 It is well settled that welfare of minor is paramount consideration for deciding even a temporary custody of a minor. Minors cannot be treated as chattel for claiming custody. Powers to grant access, visitation right or custody of a minor are not to be exercised in the interest of parents, but in the interest and welfare of a minor child. While handing over custody of a minor child, the Court is required to keep in mind that health, safety and overall welfare of the child will properly taken care of by the parent to whom the custody or access is being given. What will be for the welfare of the minor will depend upon the facts and circumstances of each particular case. In the case in hand, Miss.Janhavi is reported to be just 6 ½ years old and she is undisputedly in custody of her father­petitioner since her birth. Allegations are to the effect that she is being physically hurt and traumatized by her mother­respondent. According to her father, she is not willing to join company of her mother for summer vacation access and, therefore, she needs to be evaluated psychologically for ascertaining reason thereof and till then she may not be given in custody of her mother­respondent.

9 In the case in hand, medico­legal certificate dated 28th January 2017, which is a part of record, shows that on 28th January 2017 upon examination of Ms.Janhavi ­ a minor female child of six and half years age, the attending Medical Officer had found that she had suffered multiple bruises apart from tenderness over her arms, root of nose and back. At record page 169, there is an affidavit of the petitioner-father filed before the Family Court, Mumbai. Paragraph 7 of that affidavit dated 3rd March 2017 is relevant. It is averred in paragraph 7 of that affidavit by the petitioner-father that on 28th January 2017 at about 11.45 a.m., the mother started pulling Janhavi, who was holding him tightly by the shirt, but the mother could not pull Ms.Janhavi away. It is averred that Ms.Janhavi started crying loudly and because of force applied, shirt of the petitioner-father was torn. In paragraph 7 of the affidavit, it is further averred that the petitioner tried for almost 20 minutes to convince Ms.Janhavi to sit with the respondent-mother. However she refused to comply that request. This, prima faice, indicates the serious trauma undergone by Miss.Janhavi, when she was being given in custody of the respondent-mother. She was ultimately hurt physically in the incident of that date.

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10 At record page 180, there is another medico ­legal certificate dated 18th February 2017 in respect of minor female child Ms.Janhavi. This certificate shows that Ms.Janhavi was found to be physically injured at the time of her medical examination on that day. She seems to have suffered contusions.

11 At record page 182 there is an affidavit, which was filed by the petitioner-father before the trial Court and paragraphs 14,15 and 16 of that affidavit are relevant. Perusal of those shows that on 18th February 2017, Ms.Janhavi returned to the petitionerfather from her mother on completion of access. The petitioner averred in that affidavit that at that point of time, Ms.Janhavi told him that she do not want to go for access to her mother and pulling her by her mother is hurting her. It is further averred by the petitioner-father in that affidavit that on the next day, while giving head massage to her daughter, his daughter told him that her mother is hitting her or pinching her and, therefore, she became scared. Pleadings in that paragraph 16 further reflects forcible tutoring to Ms.Janhavi by her mother against the petitioner-father.

12 On these pleadings and material on record, it is seen from the impugned order passed by the learned Family Court that the Family Court has accepted the request of the petitioner-father to get his daughter Ms.Janhavi evaluated by the Child Psychologist by securing the services of the Child Psychologist for that purpose. It was contention of the father before the Family Court that his minor daughter is traumatized and hurt by the respondent-mother and, therefore, orders granting access of Ms.Janhavi to her be recalled. According to the father, his minor daughter is very scared and apprehensive to join company of her mother.

13 Accepting the request and contentions of the father of Ms.Janhavi, the learned Judge of the Family Court by the impugned order was pleased to appoint Dr.Harish Shetty by describing him as ‘Child Psychologist’. The Bio­Data of Dr.Harish Shetty placed on record today by the petitioner-father shows that Dr.Harish Shetty is MD in Psychiatry and he is ‘Psychiatrist’ practising in Mumbai. Perusal of the impugned order shows that the learned Judge of the Family Court has not enquired or examined whether Dr.Harish Shetty is a Psychologist and particularly a Child Psychologist. Without undertaking this exercise, he came to be appointed for evaluating psychology of Ms.Janhavi – a female child of six and half years of age. Prima facie, Dr.Harish Shetty appears to be a qualified psychiatrist and not a Child Psychologist.

14 Two medico­legal certificates on record, prima facie, shows that Ms.Janhavi has suffered child abuse which, according to her father, is caused by her mother. Resistance of Ms.Janhavi to join company of her mother, as pleaded by the petitioner-father has occasioned the learned Judge of the Family Court to deem it necessary to appoint a Psychologist for her psychological evaluation. However, instead of appointing an expert Child Psychologist, Dr.Harish Shetty, a practising Psychiatrist has been appointed by the learned Judge of the Family Court for this purpose. At this juncture, it needs to be noted that children facing several emotional problems such as depression, anxiety, child abuse, sexuality, etc. requires necessary care and help from a Child Psychologist, who spend time assessing the depth of such problem by using his skills and carving out solutions for such problems. A Psychologist is an expert in the study of human behaviour. A Child Psychologist specializes in undertaking the though process and actions of children and interpreting them to guide appropriate mental health treatment. Clinical Child Psychologist focus on the diagnosis and treatment of mental disorder ranging from depression to schizophrenia by interviewing patient, conducting tests, etc. In case of substance abuses, a Child Psychologist devises a treatment plan and may implement behaviour modification program. Counseling Child Psychologist takes a behavioral approach to emotional problems of children. Psychologist treats emotional and mental suffering in patient with behavioral intervention. As agaisnt this, a Psychiatrist is a trained medical Doctor and he take care of medication management of a patient as a cause of treatment by prescribing medicines. In the case in hand, what is required is report from a Child Psychologist on evaluating behaviour of Ms.Janhavi to analysis her conduct in her resistance and refusal to join company of her mother­respondent. However, it appears that inadvertently though the learned Judge of the Family Court accepted the contention of the petitionerfather in this regard, has erred in appointing a ‘Psychiatrist’ in doing the work as ‘Child Psychologist’.

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15 During course of arguments, it is ascertained from the learned Advocates appearing for both parties that Ms.Janhavi is taking education in IInd Standard in a school at Mumbai. This distance can be traveled within a time of about half an hour from the house of the respondent-mother as stated by her learned Advocate. The access given by the learned Judge of the Family Court to the mother is from 29th May 2017 to 3rd June 2017. A statement is made at bar by the learned Advocate for the petitioner-father that in the event nothing adverse is found in psychological evaluation of Ms.Janhavi by the competent Child Psychologist, the petitioner-father will give compensatory access to respondent-mother in respect of this period. The statement so made is accepted. Thus, in future, if nothing adverse is found, Miss Janhavi can be given in temporary custody of her mother even after reopening of the school.

16 The net result of foregoing discussions goes to show that Ms.Janhavi was found to be hurt and injured on 28th January 2017 and 18th February 2017 when her medical examination was done by the competent Medical Officer. It is averment of her father that the respondent-mother is the cause behind those wounds. There is duly sworn testimony to this effect on record. As against this, it is the contention of the respondent-mother that Ms.Janhavi was not in her custody on those two dates and she has not wounded Ms.Janhavi. Be that as it may, but the case in hand appears to be a clear case of a child abuse. I have already mentioned that welfare of a child is paramount consideration while deciding the issue regarding the custody of a minor child. In the case in hand, Ms.Janhavi is seen to have been traumatized and physically injured not once but on two occasions in the process of giving access. Report of her psychological evaluation done by a competent disinterested Child Psychologist will give some clue, as to who was the author of wounds suffered by Ms.Janhavi and the reason of her apprehension and reluctance to join company of her mother. Ms.Janhavi, since her birth, is undoubtedly in custody of her father­the petitioner. As such, looking to the aspect of her safety and wellbeing, she needs to be continued in his custody till her psychological evaluation by the expert Child Psychologist for ascertaining her behavioral issues and issue of a child abuse. The respondent-mother is objecting appointment of Child Psychologists from the list given by the petitioner-father. Her learned Advocate states that by tomorrow, he will submit another list of expert Child Psychologists for consideration of this Court. Keeping in mind welfare of minor female child Ms.Janhavi, I proceed to pass the following order as an interim measure :

(i) Until further order, impugned order dated 25th April 2017 passed by the learned Family Court, Mumbai so far as relates to granting access of Ms.Janhavi to the respondent/mother for the period from 29th May 2017 to 3 rd June 2017 is stayed.

(ii) Stand over to 30th May 2017 in order to enable the respondent to submit list of expert Child Psychologists in order to enable this Court to determine and nominate the expert Child Psychologist for evaluating psychology of Ms.Janhavi.
(A.M.BADAR J.)

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