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Child visitation with Section 151 CPC

Delhi District Court

IN THE COURT OF SH. SAMEER BAJPAI,
JSCC­CUM­ASCJ­CUM­ GUARDIAN JUDGE (WEST): DELHI

GP No. 61/12

Rajni

Versus

Subhash Malik
O R D E R
06.06.2013

1. By this order I shall dispose of applications under Section 12 of Guardian and Wards Act and under Section 151 CPC as filed by the petitioner along with petition, being a mother of the children for granting interim custody during coming summer vacations and further visitation rights to meet with the children Baby Muskaan Malik and Master Tanish Malik till the final disposal of the petition. I shall also dispose of applications under Order 7 Rule 11 CPC for rejecting the petition and under Section 151 CPC to examine the children in chamber as filed by the respondents. The brief facts necessary for the disposal of the present application are as under:

2. The petitioner is the daughter­in­law of the respondents as was married to Late Sh. Girish Malik, deceased son of the respondent. The marriage of the petitioner with Late Sh. Girish Malik was solemnized on 30.11.1995 at Rajouri Garden according to the Hindu rites and ceremonies. The relation of the petitioner with her husband and the respondents were cordial and she had been happily living with them. On 19.03.1997 and 10.06.2001, the  children Baby Muskaan Malik and Master Tanish Malik were born. With the passage of the time, the attitude of the respondents was changed and they started behaving improperly. Unfortunately, the husband of the petitioner died on 01.03.2004 at Salasar Balaji, Rajasthan. After the death of the husband, the behavior of the respondents become inhuman and cruel. The respondents began to compel the petitioner to earn for herself. The respondents provoking the parents of the petitioner and lastly, they become successful to get her married to a Mumbai based Businessman with assurance that after 15 days of the marriage they will deliver the custody of the children to her but they did not do so and due to which the marriage was broken down. Thereafter, the petitioner went to her residence to see and meet the children but the respondents mercilessly and cruelly denied for the same. Immediately, the respondent changed their residence and cut all the channels of communications and also changed the school of the children. The respondent gave false assurance of returning the children by putting new conditions every time but never honored their assurances. After some time, the petitioner again remarried and started living along with her husband and both of them are desires to keep the children with them. The petitioner submits that only for the sake of the children she has invested her precious time of her life to acquire higher education and good job and now. When she has acquired both, the respondents are deliberately denying the custody of the children. The petitioner alleges that the minor children are not in safe custody of the respondents and the custody in every case must be handed over to her.

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3. In reply, the averments of the respondents are that from the day one, the petitioner had been neglecting and avoiding the family of the respondents. Further, the petitioner is self centered lady and completely thrown the children in jeopardy and never bothered about the education, progress, development of the children. The petitioner left the house of the respondents in December, 2004 without intimation and the present petition has been filed in June, 2012. The respondents allege that the petition is time barred and should be rejected. Further, the petitioner herself withdrew from the company of the children within 9 months of the death of her husband and left the custody of the children into the hands of the respondents. Further, after some time, the respondents came to know that the petitioner had contracted marriage with one Sh. Rajesh Devendernath Thukral and the same has also broken. Further, the petitioner shifted to Mumbai and in such a situation even, if the children wanted to see her, they could not do so. The petitioner did not turn up even after leaving her second husband and again married with one Sh. Rajiv Sarna. The petitioner never bothered to give any intimation to the respondents about her changed address. Further, the petitioner never tried to meet the children or see them on the other hand, the respondents being the grandparents of the children have been maintaining and providing all comforts of life to them. Further, both the children are very well in education and other activities only due to care of the respondents. Further, the petitioner could never think of anything beyond her needs for money and sex. Further, she contracted two marriages after the death of the father of the children. Further, she took all the jewellery, gold, silver and other articles with her. Further, the petitioner has been living in atmosphere which is not  befitting to the family atmosphere of the respondents, for which the children are familiar. Further, Muskaan Malik is a girl and approaching the age of puberty and the company of the petitioner, who is living such a life of changing husbands cannot be said to be feasible for such a tender aged girl. Further, the petitioner has moved the present petition after eight years from the day of separation from the children and has no intention to take care of the children.

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4. In the first application under Section 12 of the Act, the petitioner prays for interim custody of the children. In the second application, the petitioner wants visitation rights. On the other hand, in the application under Order 7 Rule 11 CPC, the respondents prays for rejection of the petition being time barred. In the other affixation under Section 151 CPC, the respondents pray to interact with the children.

5. As far as the application of the respondent under Order 7 Rule 11 CPC is concerned to my mind, the same is not maintainable as there is no limitation for moving a petition and accordingly, the application is dismissed.

6. As far as another application under Section 151 CPC to interact with the children in chamber is concerned, the Court has already interacted with the children for quite a long time. Besides, the interaction with the children, the Court has also talked to the petitioner as well as respondent no. 1 in chamber. The application is stands disposed off.

7. Now, comes the question of the applications under Section 12 of Act and under Section 151 CPC for visitation rights, the facts as narrated by the petitioner and the respondents in their pleadings are not important to be discussed at this preliminary stage.

8. The golden rule which permeates through the custody jurisprudence is the welfare of the child. Rights of the parties are subservient to the interest and welfare of the child. The Court must give due regard to the age, gender, nearness of kin to the minor and wishes of the child if the child is old enough to form an independent preference with regard to his stay.

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9. Record shows that after the death of the husband of the petitioner, the children have been living with the respondents right from the beginning. The respondents are grandparents of the children and children have been living with them very comfortably and happily. During the course of interaction, the children reveled that they love their grandparents and have been living with them very comfortably. The children also reveled that their grandparents have been taking care of each and everything including their studies. The girl child Muskaan Malik is aged about 16 years and boy child Tanish Malik is 12 years old and both are quite intelligent and matured to understand the things and take their own decisions. During the course of interaction, the children leveled various allegations against the petitioner, which will not look nice to be mentioned and discussed at this stage.

10.It is very surprising to see that the petitioner kept herself away from the children for a very long period and moved this petiton after about seven years, despite the fact that allegedly the respondents did not allow her to meet the children.

11.At this stage, the wish of the children is the most important factor and the children in no way are ready to go with the petitioner. Rather, they do not want to see even the face of the petitioner. It cannot be denied that the petitioner is the mother of the children being the mother, she should be given opportunity to interact and to develop good relationship with them. Accordingly, the petitioner is permitted to meet with both the children Baby Muskaan Malik and Master Tanish Malik on 4th Saturday of every month from 03.00 PM to 05.00 PM at Visitation Room, Tis Hazari Court Complex. The respondents are directed to ensure the production of children for meeting as mentioned above.

12.The application under Section 12 of G.W. Act filed by the petitioner is dismissed and application under Section 151 CPC is disposed off. Announced in the open Court today the 6th June, 2013.

(SAMEER BAJPAI)
JSCC­Cum­ASCJ­Cum GUARDIAN JUDGE (West) 06.06.2013

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