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Whether the court can stay the application of the husband for custody or access to the child until he pays interim maintenance to his wife and child?


Notice of Motion No. 1554 of 1992 in Interim Petn. No. 32 of 1990 in Custody Petn. No. 31 of 1990

Decided On: 24.07.1992

Vinodchandra Gajanan Deokar


Anupama Vinodchandra and Ors.

Hon’ble Judges/Coram: B.N. Srikrishna, J.

Citations: AIR 1993 Bom 232, 1992 (3) BomCR 129, I (1993) DMC 537

1. This notice of motion has been taken out by the respondent-wife for a variation of the Order dated 15th January, 1991, made by Cazi, J., in Interim Petition No. 32 of 1990, allowing the petitioner-husband access to the minor child, Leena, in the manner as provided for in the said order. This litigation has a peculiar background, and, unless the factual matrix is reproduced, it would not be possible to appreciate the circumstances under which the motion has been taken out or the defences taken in objection to the prayers in the motion.

2. The respondent-wife filed M.J. Petition No. 622 of 1989 before the Bombay City Civil Court, Bombay, for obtaining divorce and for maintenance for herself and the minor child, Leena. Upon the Matrimonial Jurisdiction of the Bombay City Civil Court being transferred to the Family Court, the said proceedings came to be transferred to the Family Court, Bombay. The respondent had taken out an interlocutory Application No. 378 of 1990 before the Family Court, seeking interim maintenance. The Family Court, vide its Order dated 11th September, 1990, directed the petitioner to make payment of maintenance at the rate of Rs. 2,000/- per month for the respondent and at the rate of Rs.4,000/- per month of the minor child, Leena, with effect from 21st July, 1990. In addition thereto, a sum of Rs. 3,000/- was also directed to be paid as costs.

3. The petitioner-husband challenged the said order of the Family Court in writ petition, being Writ Petition No. 5159 of 1990, before this Court. Though, initially, an ad interim order of stay of the order made by the Family Court was granted, the stay came to be vacated by an Order dated 30th January, 1991. At no stage, did the petitioner-husband indicate willingness on his part to abide by the orders for interim maintenance made by the competent Court neither at the initial stage, nor after the stay was vacated by the learned single Judge of this Court.

4. Not only did the petitioner-husband not pay the interim maintenance to the respondent and the minor child, but he moved another Interim Petition No. 3 of 1991 for an order of interim custody of the minor child. This Interim Petition, No. 3 of 1991, came up for hearing before another learned single Judge of this Court (Dhanuka, J.), who, by his lengthy Order of 22nd March, 1991, placed on record the contumacious conduct of the petitioner-husband, and upheld the preliminary objection raised by the respondent-wife that the petitioner ought not to be heard, unless he complied with the order of the Family Court dated 11th September, 1990. He also directed the petitioner-husband to deposit a sum of Rs. 54,000/- in Court on or before 1st April, 1991, and granted liberty to the respondent-wife to withdraw the said amount. The learned Judge directed :

“Till the said amount is deposited, this petition will not be heard, as it is in the interest of the minor child that the arrears of maintenance first be cleared.”
The learned Judge (Dhanuka, J.) also had occasion to notice the contentions raised by the respondent-husband in the writ petition filed by him and the order passed by Tipnis, J. While vacating the stay granted earlier, Dhanuka, J., directed that :

“If the petitioner is able to obtain stay of the order of the Family Court dated 11th September, 1990 from the writ Court or any other Court of competent jurisdiction, liberty to apply to this Court for modification of the order passed by me.”
5. I am informed at the bar by Mr. Shetty, learned advocate appearing for the respondent-wife, and it is not disputed, that writ petition No. 5159 of 1990, filed by the petitioner-husband challenging the Family Court’s order was ultimately dismissed by an Order dated 9th January, 1990, made by Agarwat, J. The respondent has not filed any proceedings to challenge the said order, which has become final.

6. As an offshoot of the facts noticed by Dhanuka, J., in his Order dated 23rd March, 1991, suo motu contempt proceedings were taken out by this Court against the petitioner for wilful disobedience of the Family Court’s Order dated 11th September, 1990. The notice issued to the petitioner-contemnors was discharged some time in December, 1991. Aggrieved by this, the respondent-wife carried the matter to the Supreme Court by way of Special Leave Petition (Civil) No. 17418 of 1991. The Supreme Court disposed of the Special Leave Petition by an Order dated 13th January, 1992, which is as follows:–

“Heard learned counsel for the parties. Taking in view the entire facts and circumstances of the case we deem it proper to direct that the respondent Vinodchandra Gajanan Deokar shall pay the amount of Rs. 34,000/-balance of Rs. 54,000/- towards maintenance of the petitioner Smt. Anupama Vinodchandra and the minor daughter to the petitioner within two weeks from today. In case the aforesaid amount of Rs. 34,000/- is not paid within the aforesaid period then the proceedings in the custody petition No. 31/90 pending in the High Court of Bombay shall remain stayed till the contempt petition pending in the Family Court is finally disposed of. In case the aforesaid amount of Rs. 34,000/- is paid then the custody proceedings will continue in the High Court. This petition is hence disposed of finally in the manner indicated above.”
7. As a matter of fact, the balance amount of Rs. 34,000/- towards the interim maintenance has not been paid till today, and the learned advocate for the petitioner accepts this fact. However, it is stated by Mr. Angal that, while it is true that the Order passed by the Family Court on 11th September, 1990, has not been fully complied with, some amount has been deposited towards interim maintenance, which fact is also not disputed. Since the amount, as directed by the Supreme Court, was not paid, the respondent-wife took the stand that, consequently, all proceedings in the High Court, including access to the child, had been stayed by the Supreme Court, and, therefore, refused to give access. The petitioner moved this Court again, and, by an Order dated 27th April, 1992, another learned single Judge of this Court (Jhun-jhunuwala, J.), after interviewing the child and obtaining its wishes, came to the conclusion that the child was reluctant and unwilling to go to the petitioner-father. He also came to the conclusion that, though the petitioner-father had a desire to have access to the child, “he has no intention whatsoever to carry out or obey the order passed by the Family Court for making payment of the maintenance amount”. The learned Judge examined the contention of the petitioner that he did not have sufficient financial resources to comply with the order passed by the Family Court, and, upon failure of the petitioner to produce the books of account, which were admittedly maintained, came to the following conclusion :–

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“…The family of the petitioner, which includes his father, is a rich family and enjoys all comforts of life including maintaining car and having all other luxuries. The Petitioner is residing at Jolly Maker Apartment No. 2 at Cuffe Parade, Bombay 400 005, and carries on his own business. In the circumstances, it is not possible to accept the version of the Petitioner that the Petitioner has no sufficient income to make the payments of the maintenance amounts as per the said order passed by the Family Court.”
On these findings, the learned Judge was pleased to refuse any direction on the application of the petitioner at that stage.

8. An application was made before me, by way of a motion, with a grievance, that, despite the order made by Cazi, J., on 15th January, 1991, the respondent-mother was not giving the petitioner access to the child. The petitioner, therefore, sought appropriate direction against the respondent. At this stage, it was pointed out to the respondent-mother that, unless Justice Cazi’s Order dated 15th January, 1991, was varied or set aside, she would have to abide by it. Consequently, application to modify and/or set aside the Order dated 15th January, 1991, made by Cazi, J., granting access to the petitioner to the minor child, has been made by the present notice of motion.

9. At the outset, I might mention that the facts leading to the present notice of motion are not at all disputed. It is also not disputed by the petitioner-husband that he has not complied with binding orders of competent Courts against him. His only contention is that, despite the fact that Courts might have made orders against him for interim maintenance, which might have been upheld by this Court, and also a direction having been made by the Supreme Court, he is in no position to comply with them on account of paucity of finances. I am afraid that this is an old story, too stale to be accepted at this juncture. Not less than four learned Judges of this Court have discounted and debunked this story of the petitioner, the last one being Order of Justice Jhunjhunwala dated 27th April 1992. I, too, am not able to accept this defence, at any rate, at this stage. A person having his own independent business, belonging to an affluent business family, which resides at Cuffe Parade (a prime locality in Bombay), maintains a car and has other luxuries of life, can hardly be heard to say that he is in no position to meet the order of maintenance of Rs. 4,000/- per month for his minor child and Rs. 2,000/- per month for his estranged spouse. If at all there was any truth in this contention, the petitioner would have availed of the opportunity given to him by Jhunjhunuwala, J., of producing his books of account, so that the veracity of this defence could have been tested. I am, therefore, prima facie, at least at this juncture, of the view that financial stringency is a bogey being put forward only to bolster the contumacious conduct and stand adopted by the petitioner-husband.

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10. A very interesting defence is raised by Mr. Angal, learned advocate for the petitioner-husband. “It is true that I have not complied with the order of the Courts, but the remedy for that lies in execution of the orders and obtaining attachment of my properties. But that cannot be a ground for denying access to me during the pendency of the custody petition”, thus runs the argument on behalf of the petitioner-husband.

11. My attention has been invited by Mr. Angal to three orders made by Sawant, J., dated 18th February, 1991, 13th March, 1991 and 14th March, 1991, which are produced at Exhibits “A”, “B” and “C” to the affidavit-in-reply in the present notice of motion. Mr. Angal was at pains to impress upon me that, upon interviewing the child, the said learned Judge had come to the conclusion that the child very much wanted to come and live with the father, despite all the probable inconvenience highlighted to her by the learned Judge. Is that not a sufficiently strong factor to permit access? queries Mr. Angal.

12. While conceding fairly that there was no judgment which would apply on all fours to the present case and to support the arguments made by him, Mr. Angal relied on three authorities, which, in his submission, support his case.

13. The first one is the judgment of the English Appeal Court in S. v. S. and P. (1962) 2 All ER 1. This was a case where the husband had sued the wife for divorce on the grounds of desertion and living in adultery. Pending the divorce petition, an application was moved by the wife for access to the children, which was rejected by the learned Commissioner. In appeal there against, the appeal Court pointed out that even the learned Commissioner was of the view that, normally, it would not be proper to deprive the mother of access to children in such matters, and further that the Court should not take the step of shutting out access to a mother, unless satisfied that she is not a fit and proper person to be brought into contact with children at all. Observed Willmer, L.J.

“…Such a situation might arise, for instance, if she were a person with a criminal record, or one disposed to act with cruelty against children, or something of that sort. To say of a woman that she is a bad wife or mother may be an excellent reason for not giving her care and control, but, in my view, is not sufficient ground for depriving her of any kind of access.”
It is not possible to read this judgment as supporting the proposition canvassed by Mr. Angal.

14. Mr. Angal referred me to Halsbury’s Laws of England, Third Edition, Volume 12, Part 8, Section 2, Page 393, Article 873, and argued that it had been held in England that “In dealing with such matters, the Court must regard the welfare of the infant as the first and paramount consideration and not the punishment of the guilty spouse. Access is usually allowed to an offending father, and also to a mother, who has been guilty of adultery.” Mr. Angal contends that, if courts in England have granted access even to mothers accused of adultery, in pending divorce petitions, access could not be denied to his client, who has not been accused of anything at all, except, perhaps, the venial sin of not obeying orders of Courts. I am unable to see the matter in such simplistic light.

15. Finally, Mr. Angal relied on a judgment of a learned single Judge of the Madras High Court in D. Rajaiah v. Dhanapal, MANU/TN/0173/1986 : AIR1986Mad99 and relied on the following observations (vide paragraph 7) :

“….The welfare of the minor children is not to be measured only in terms of money and physical comforts. The word “welfare” must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Courts as well as its physical well- being.”

(Vide paragraph 8) :

“…Though the Court may ascertain the wishes of the minor, such wishes are not controlling on the Court, and this Court has to assess the entire facts and circumstances of the case, and in appropriate cases, can even disregard the wishes and preference expressed by the minors, especially when the Court gathers an impression as in the present case that the minors have not given answers on the question of their wish voluntarily, but under influence and tutoring…”

16. Apart from the statutory jurisdiction given to the Family Court, this Court exercises inherent jurisdiction in Guardianship vested in it by virtue of the fact that it is a Chartered High Court. This jurisdiction is of wider sweep and not hemmed in by statutory constraints. The purpose of clothing this Court with such wide powers is to seek and interdict injustice, whatever and wherever. As has been pointed out in the very authorities pointed out by Mr. Angal, and in a host of others not cited at the bar, it is the prime duty of the Court to ascertain what would be the ‘welfare’ of the child before making order as to custody or access. This, notwithstanding the fact that the child might express a strong desire one way or the other. Doubtless, the wishes of the child could contribute to the moulding of the relief by influencing the thinking of the Court; but they cannot override or supplant the judgment of the Court, which has to be more wide-ranging and comprehensive.

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17. The petitioner might view his contumacious behaviour lightly. He might feel that disobedience of orders of competent Courts is a matter to which is attached neither normal nor ethical stigma. This Court cannot be complacent and permit influence of such thinking to percolate into the mind of a nine year old, which is very much impressionable.

18. In my considered view, for three reasons, access must be denied.

19. First, the petitioner cannot be allowed to benefit from his own wrong. Under the order of the Supreme Court, till the amount directed is paid, the custody petition remains stayed. By failure to deposit and by flagrantly flouting the order for maintenance, the custody petition might remain indefinitely stayed; but the petitioner would continue to have access to the child if the order of Cazi. J. is not varied. This would hardly be conducive to justice. Judicial conscience is outraged and appalled by the very thought.

20. Second, in my considered view, apart from other considerations, the fact that the father is a self-professed flouter of orders of Courts should lead to the conclusion that there is likely prejudice to the child’s all round development, its psyche being affected and deleteriously influenced, if such a father is permitted periodical access to the child.

21. Finally, I cannot forget the fact that here is before me a father, who refuses to fork out the amount, which the competent Court has determined as justly due and payable towards maintenance of the wife and child. It is not in dispute that the arrears of the interim maintenance have accumulated to about Rs. 1,40,000/- till today. Interim maintenance is made payable, so that the wife and child can sustain themselves, for keeping body and soul together. Fresh air and plenty of love would hardly be sufficient to sustain life. In this case, of course, I am afraid, there may not be even fresh air (thanks to pollution), nor, as I see it, much love. At least, there ought to be the wherewithal for daily sustenance, which must be provided by the father, if he loves the child, as much as he professes. If he fails to do so, I discern in him a streak of cruelty, a spirit of vengeance, and a vein of sadism underneath the thinly disguised venom of self-proclaimed love for the child.

22. Should the Court permit the child to be affected by the baleful influence of such a person during periodical access to the child? Is not the Court bound to insulate the child against such baleful influence by denying access? Which way lies the overall mental, physical and moral welfare of the child of which the Court is in loco parentis? These are some of the questions which I have addressed to myself. After much anguishing soul-searching, I have reached the painful conclusion that, for reasons more than one, the petitioner must be denied access to the child until he displays evidence of contrition, penitence and reform; in shori, until he pays up the arrears of interim maintenance and shows readiness to pay from month to month the amounts ordered, I do not consider him a fit person whose influence should be allowed to rub off on the child.

23. Since this is only a notice of motion taken out in the custody petition, all observations made are purely prima facie, tentative and intended only for the purpose of disposal of the motion.

24. In my view, for the aforesaid reasons, it is necessary, in the interests of welfare, well-facing and all round beneficial development of the child, to deny the petitioner access to the child till such time, at least, that he reports, relents and becomes agreeable to comply with orders of the Courts.

25. In the result, the notice of motion is made absolute in terms of prayer (a), and it is made clear that the petitioner shall have no right of access to the minor child until he deposits with the Family Court all arrears of maintenance up-to-date, and gives an undertaking in writing to the Court that he shall continue to abide by the order of the Court from month to month.

26. Motion, accordingly, made absolute. Costs of the motion fixed at Rs. 150/-.

27. Ordered accordingly.

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