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Mother directed to drop child to Father house in child visitation

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO.2501 OF 2021
AND
INTERIM APPLICATION NO. 2484 OF 2021
AND
INTERIM APPLICATION NO.2274 OF 2021
IN
FAMILY COURT APPEAL NO. 21 OF 2021
WITH
FAMILY COURT APPEAL NO. 21 OF 2021
WITH
INTERIM APPLICATION NO.2602 OF 2021
IN
FAMILY COURT APPEAL NO. 31 OF 2021

.
Mr. Mahendra Thanai … Appellant

Versus

Mrs. Namita Mahendra Thanai … Respondent

Mr. Manohar Shetty a/w. Adv. Saruesh Mishra for the Appellant-husband in FCA/21/2021.

Mr.Brijesh Shukla a/w Ms.Hooralain Hussein and Mr. Amit Singh for the Appellant-wife in FCA/31/2021.

Mrs.A.A.Purav, AGP for the State.

CORAM : A. A. SAYED & S. G. DIGE, JJ
DATED : 29th OCTOBER, 2021
P.C.:

In the nature of order we propose to pass, it would be necessary to set out how the matter has proceeded. We therefore reproduce the orders passed by the Court from time to time:

2. 13 August 2021 “1 List both the Family Court Appeals on 18.08.2021 at 4.30 p.m. in the Chamber No. 68.

2 Learned Counsel for the parties are agreed that their clients and the minor child will remain present.”

3. 18 August 2021 “We have interacted with the husband as well as wife (alongwith minor child) in Chamber.

2. List the matter on 31 August 2021.”

4. 6 September 2021 “Learned Counsel for the Appellant-husband seeks time on the ground that the arguing Counsel is unwell.

2 List the matter on 13 September 2021, high on board alongwith Family Court Appeal No.31 of 2021 (Namita Mahendra Thanai vs. Mahendra Ramesh Thanai).”

5. 13 September 2021 “Learned Counsel for the husband states that despite service of the Interim Application No. 2274 of 2021 as far back on 24 th April, 2021, no Affidavit-in-Reply has been filed by the wife. It is further pointed out by learned Counsel for the husband that despite the final order of the Family Court dated 25 th November, 2020 granting shared custody of the minor child Krishang, who is now 4 years old, between 6 pm on Sunday until 4 pm on following Thursday of every week, the Respondent-wife is not abiding by the said directions of the Family Court. We are told that the access of Krishang was last given to the husband on 15 th October, 2020. It is pointed out that no Interim Application had been filed by the wife seeking modification of the final order of the Family Court.

2. Learned Counsel for the wife states that the said final order dated 25th November, 2020 of the Family Court including the directions of shared custody has been challenged by the wife by way of above Family Court Appeal No. 31 of 2021 which is also on today’s board alongwith the Family Court Appeal No. 21 of 2021 filed by the husband.

3. To grant an opportunity to the wife to file Affidavit-in- Reply to the Interim Application No. 2274 of 2021 of the husband, we defer the matter for period of two weeks.

4. Stand over to 27th September, 2021.

5. In the meantime, subject to further orders, the wife shall allow exclusive access/custody of Krishang to the husband on Saturday, 18th September, 2021 from 11.00 am till 7.00 pm and overnight exclusive access/custody from Saturday, 25 th September, 2021, 2.00 pm till Sunday 26th September, 2021, 4 pm.

6. We also note that before the Supreme Court the parties had agreed to shared custody of Krishang as has been recorded in the order dated 28th February, 2020 of the Supreme Court in SLP (Crl.) No. 1342 of 2020 that Krishang shall be exclusively with the husband between 6 pm on Sunday until 4 pm on following Thursday of every week. We may record that on 18 th August, 2021 we had interacted with the husband as well as the wife (alongwith the minor child) in our Chamber.

7. The husband has agreed to deposit his passport with Registrar (Judicial-I) of this Court by Friday 17 th September, 2021 to take care of any apprehension of the wife.

9. Without prejudice to the rights and contentions of the parties, the husband shall handover to learned Counsel for the Wife a sum of Rs.1.00 Lac by Cheque by 17th September, 2021.”

6. 22 September 2021 “1 The Interim Application is listed on Board today at the instance of the Advocate for the Husband. He has produced a copy of the Interim Application dated 20.09.2021 in Interim Application No. 2274 of 2021 in FCA No. 21 of 2021, seeking action of contempt against the Wife. Let the Interim Application be lodged, if not already lodged.

2 Learned Counsel for the Husband has pointed out the order dated 13th September, 2021 passed in Interim Application No. 2274 of 2021 in FCA No. 21 of 2021 (with FCA No. 31 of 2021). Paras 4 to 8 of the said order dated 13th September, 2021 read as follows :

“4. Stand over to 27th September, 2021.

5. In the meantime, subject to further orders, the wife shall allow exclusive access/custody of Krishang to the husband on Saturday, 18th September, 2021 from 11.00 am till 7.00 pm and overnight exclusive access/custody from Saturday, 25th September, 2021, 2.00 pm till Sunday 26th September, 2021, 4 pm.

6. We also note that before the Supreme Court the parties had agreed to shared custody of Krishang as has been recorded in the order dated 28th February, 2020 of the Supreme Court in SLP (Crl.) No. 1342 of 2020 that Krishang shall be exclusively with the husband between 6 pm on Sunday until 4 pm on following Thursday of every week. We may record that on 18th August, 2021 we had interacted with the husband as well as the wife (alongwith the minor child) in our Chamber.

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7. The husband has agreed to deposit his passport with Registrar (Judicial-I) of this Court by Friday 17th September, 2021 to take care of any apprehension of the wife.

9. Without prejudice to the rights and contentions of the parties, the husband shall handover to learned Counsel for the Wife a sum of Rs.1.00 Lac by Cheque by 17th September, 2021.”

3 Learned Counsel for the Husband submits that despite the directions contained in para -5 of the order dated 13th September, 2021 and though the Husband has deposited his passport with the Registrar Judicial -I of this Court and has handed over a cheque of Rs. One lakh to the Wife, (a copy of the acknowledgment is annexed as Exh. 2 to the Affidavit), the Wife has refused to comply with the order and failed to give exclusive access / custody of the child Krishang to the Husband on Saturday, 18th September, 2021 when the Husband went to pick up Krishang at 11 am. Learned Counsel for the Husband has pointed out that exclusive access/ custody of Krishang was directed to be given to the Husband by the Wife on 18 th September from 11 am till 7 pm..

4 Learned Counsel for the Husband states that the Advocate for the Wife has been served with a copy of the Interim Application and he has also intimated today’s listing of the above Interim Application in Court. He states that he will file Affidavit of service by tomorrow. Learned Counsel for the Husband has pointed out that even when the matter was mentioned yesterday, i.e. 21 st September, 2021, for circulation for today, he had intimated the Advocate of the Wife. None, however, was present on behalf of the Wife.

5 Today, when the matter was called out in the morning session none appeared on behalf of the Wife. We, therefore, kept the matter back. In the afternoon session also, when the matter is now called out, none appears on behalf of the Wife.

6 Having regard to the conduct of the Wife, we direct that notice be issued to the Wife- Mrs. Namita Mahendra Thanai to show cause as to why action should not be taken against her under the Contempt of Courts Act, 1971 for non compliance of the order dated 13 th September, 2021.

7 The Notice shall be served to the Wife through the Samata Nagar Police Station, Kandivali East, Mumbai. Learned AGP to communicate this order to the Senior Inspector of Police, Samata Nagar Police Station.

8 We grant an opportunity to the Wife to purge the Contempt and now comply with the direction in the order dated 13th September, 2021, granting exclusive custody/ access of Krishang to the Husband on Saturday, 25th September, 2021, 2.00 pm till Sunday, 26 th September, 2021, 4 pm. 9 List the matter on 24th September, 2021 at 2.30 pm.”

7. 24 September 2021 “Pursuant to the order dated 22 September 2021, a Contempt Notice has been issued to the wife, which has been served as per the Report dated 24-09-2021 of the Sr.Inspector of Police, Samata Nagar Police Station. The Advocate of the wife is present in Court today. He tenders apology for not having remained present on the last date i.e. 22 September 2021. Learned Counsel for the wife assures the Court that tomorrow i.e. Saturday, 25 September 2021 at 2 p.m., the husband may collect Krishang and that the order dated 13 September 2021 shall be complied with.

2. Learned Counsel for the husband pointed out that as per the order dated 13 September 2021, apart from the exclusive day custody/access of Krishang on Saturday 18 September 2021, exclusive custody/access of Krishang has also been granted from Saturday, 25th September, 2021, at 2 pm till Sunday 26th September, 2021, at 4 pm.

3. Accepting the assurance of the learned Counsel for the wife, we defer the matter. Let the matter now appear on Board on 27 September 2021, as scheduled.”

8. 27 September 2021 “1. Mentioned.

2. Learned Counsel for the wife informed the Court that despite the Contempt Notice and assurance given to the Court by the wife through her Counsel, as recorded in the order dated 24 th September, 2021, the wife has denied exclusive custody/access of Krishang from Saturday, 25 th September, 2021 at 2.00 p.m.till Sunday, 26 th September, 2021 at 4.00 p.m. to the husband.

3. Learned Advocate for the husband to intimate the next date of hearing to the wife as well as Advocate for the wife.

4. Since Contempt Notice has been served upon the wife, she shall remain personally present in Court as required under Chapter XXXIV Rule 9 of the High Court Appellate Side Rules on the next date and subsequent dates.

5. List the above matters on 29th September, 2021, high on board.”

9. 29 September 2021 “1. When the matter was called out in the morning session, learned Advocate (on record) for the wife submitted that Mr. Nedumpara has been engaged as Counsel to appear in the matter on behalf of the wife. Request was made to keep the matter back. When we asked why the wife is not present in Court despite the order dated 27th September, 2021, we were told that it is raining heavily in Kandivali (West). We made it clear that if the wife is not present in Court in the afternoon session, we would pass appropriate orders.

2. The matter was thereafter called out in the afternoon session at 3.00 pm when Mr. Nedumpara appeared on behalf of the wife. We were informed that the wife is on her way and will be reaching Court in some time. We therefore kept the matter back.

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3. The matter is now called out at 4.30 pm. We record the presence of the wife in Court.

4. Mr Nedumpara, learned Counsel for the Respondent- wife submits that the wife has filed Interim Application No. 2601 of 2021 seeking recall of the orders dated 13 th September, 2021 and 24th September, 2021 and Interim Application No. 2602 of 2021 for stay of the judgment and order of the Family Court dated 25 th November, 2020.

5. Mr. Nedumpara states that he is not ready with the matter and seeks time.

6. Only by way of indulgence, we defer the matter. List on 30 th September, 2021 (HOB), alongwith the IA/2601/2021 and IA/2602/2021.”

10. 7 October 2021 “1. The matter is listed at the instance of the learned Counsel for the husband. Learned Counsel for wife states that the wife is in the process of filing proceedings before the Supreme Court, challenging the orders passed by this Court. Learned Counsel for the husband makes a grievance that despite the orders passed by this Court including order dated 30th September, 2021, the wife has not given exclusive access / custody of Krishang to the husband.

2. List the matter on 12th October, 2021, as scheduled. It is expected of the wife to produce order of Supreme Court in the proceedings she proposes to file or else comply with the orders of the Court.”

11. 26 October 2021 “Despite the matter being listed today, neither the Wife nor her Advocate are present in Court. In the Contempt Petition show cause notice for contempt has been issued and the Wife is expected to remain present on every date. The Wife and her Advocate are avoiding to appear in Court. The conduct of the Wife as well as her Advocate is deprecated. Learned Counsel for the Husband has informed us that the Husband has filed a Caveat in the Supreme Court and it appears that so far no Special Leave Petition (SLP) has been filed in the Supreme Court to challenge the orders of this Court. We list the matter on 22 November 2021, high on board, when appropriate orders shall be passed.

2 After aforesaid order was passed, learned Counsel for the Husband pointed out that one lady Advocate who is junior of Mr. Shukla, Advocate, who is appearing for the Wife, is present in Court and watching the proceedings. We called upon the junior Advocate to call for Mr. Shukla. It is then that Advocate Mr. Shukla and the Advocate on record Ms. Hoosalaim Hussein appeared in Court. We are informed by Mr. Shukla that the Wife is also present in Court. We asked learned Counsel for the Wife as to whether any SLP has been filed in the Supreme Court challenging the orders of this Court. On instructions, learned Counsel for the Wife submitted that no SLP has been filed by the Wife in the Supreme Court against the orders of this Court. Weasked learned Counsel for the Wife to take instructions from the Wife whether she will produce child Krishang in Court on Thursday i.e. on 28 October 2021 at 4.30 p.m. Learned Counsel for the Wife, on instructions, states that Wife shall produce the child on Thursday i.e. on 28 October 2021 at 4.30 p.m. before this Court. Let such Undertaking be filed by the Wife during the course ofthe day.

3. List the matter on 28 October 2021 at 4.30 p.m.”

12. 28 October 2021 ” We have spoken to the Wife and the Husband and minor child- Krishang separately.

2. List the Family Court Appeal tomorrow i.e. on 29 October 2021 at 2.45 p.m. in Chamber. Parties shall remain present.

13. The Family Court by it’s final order date 25-11-2020 has interalia granted shared custody of Krishang of 4 nights with the Husband and 3 nights with the Wife, thereby maintaining the arrangement agreed to by the parties before the Supreme Court during the pendency of the Family Court proceedings, which part of the final order has been impugned by both the parties in the cross Family Court Appeals in this Court.

14. We have been very slow in our approach and counselled the Wife and have made all possible efforts to convince her to make a start by giving exclusive access/custody of Krishang to the Husband for atleast three-four hours in the day, notwithstanding our earlier orders granting even overnight access/custody. However the Wife has been adamant. The only reason given by her for not complying with the orders is that the Husband would ‘run away’ with Krishang. We prima facie find that this reason is merely a ruse to somehow not give the Husband even limited exclusive access/custody as ordered by the Court. Given the fact that the Husband did not ‘run away’ with Krishang when he enjoyed shared custody of Krishang and the fact that the passport of the Husband has been deposited in this Court, we are of the prima face view that Krishang is being used by the wife to get back at the Husband in some way by denying the Husband the love and affection of Krishang. In the process the Wife is also denying Krishang the love and affection of his father which would only hamper the overall growth and development of Krishang. This attitude and conduct of the Wife is clearly against the welfare of Krishang which is the paramount consideration which needs to be borne in mind by the Court. Though the Wife agreed to give access of Krishang through Video Calling/Video Conferencing or in her building compound/garden, the Husband has not agreed to the same on the ground that he would not like to be monitored and he has faced humiliation repeatedly in the past when he has gone to her house to pick up Krishang. It is not the case of the Wife that the Husband does not have love and affection for Krishang or any harm would be caused to Krishang in his company.

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15. We have spent more than 2 hours in our 2-3 interactions with the parties and Krishang on the dates on which we kept the matter was kept in Chamber. We have found Krishang to be a friendly child and noticed that he was very comfortable and happy with his father even when we allowed the father and son exclusive time of 10-15 minutes, spent in the corridor of this Court while we were speaking with the Wife.

16. The wife is wrongfully and intentionally withholding Krishang from the Husband in clear violation of the orders of the Court. Though we were told earlier that the Wife is approaching the Supreme Court to challenge the orders of this Court, we were informed on the last date that no proceedings are filed by the Wife in the Supreme Court to challenge the said orders.

17. In Yashita Sahu v/s. State of Rajasthan & Ors, (Criminal Appeal No.127 of 2020 dated 20-01-2020), the Supreme Court has held:

“17. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.

18. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The court must therefore be very vary of what is said by each of the spouses.

19. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.

18. Bearing in mind the totality of facts and circumstances of the case we are now constrained to pass the following order:

ORDER
(1) The Wife is directed to drop Krishang at the house of the Huband at 2 pm on 4th October (Diwali day) and collect him at 6 pm on the same day. Though it is not really necessary, only to satisfy the Wife and allay her apprehensions, if any, we direct that a police personnel in plain clothes shall be deputed by the Senior Inspector of Samta Nagar Police Station outside the door of the house of the Husband during the aforesaid time. The Husband shall not take Krishang outside the house during this 4 hour period.

(2) If the Wife does not comply with the aforesaid directions, the Senior Inspector along with a lady police personnel would visit the house of the Wife and implement the aforesaid directions of the Court including picking up and dropping Krishang. We make it clear that no force shall be used to implement the aforesaid directions of the Court.

(3) The Senior Inspector shall file a Report in this Court by 15th November 2021.

(4) We make it clear that if the order is not implemented by the Wife, it may interalia entail an order of dismissal of her Family Court Appeal as prayed by the Husband in the Fresh Interim Application.

(5) Learned AGP who is present in Court shall communicate this order to the Senior Inspector of Samta Nagar Police Station. (6) This order would present another opportunity to the Wife to purge the Contempt.

19. List the Matter on 23 November 2021.

(S. G. DIGE, J.) (A. A. SAYED, J.)

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