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Judgments of Supreme Court of India and High Courts

A K vs C M on 25 March, 2019


% Date of Judgment: 25th of March, 2019
+ MAT.APP.(F.C.) 329/2018 C.M.54109/2018
AK ….. Appellant
Through: Mr.Prashant Mendiratta, Advocate


CM ….. Respondent
Through: Mr.Sahil Munjal and Mr.Rohit Tyagi,


1. The present appeal is directed against the interim order dated
22.10.2018 passed by the Family Court on an application filed by the
appellant-father under Section 12 of the Guardian and Wards Act. As
per the order, the appellant-father has been allowed visitation on every
second and fourth Saturday of the month from 11 a.m. to second and
fourth Sunday respectively up to 4 p.m.

2. The brief facts of the case to be noticed for the disposal of the present
appeal are that the marriage between the parties was solemnized on
08.03.2008 at New Delhi as per Hindu rites and ceremonies. One
daughter was born on 19.05.2008 out of the said wedlock, who is in the
care and custody of the mother-respondent.

MAT.APP.(F.C.) 329/2018 Page 1 of 5

3. Mr.Prashant Mendiratta, counsel for the appellant-father submits that
the impugned order in fact decreases the overall visitation of the
appellant-father as initially the father was meeting the daughter on
every weekend i.e. on every Saturday and every Sunday from 10 a.m. to
5 p.m.

4. Mr.Sahil Munjal, counsel for the respondent-mother has opposed this
appeal on the ground that it is unclear as to whether the father would be
staying with the child in Delhi as admittedly the father is employed at

5. We have heard learned counsels for the parties and also given our
thoughtful consideration to the matter.

6. In the present case, it is not in dispute that the daughter aged about 10
years has been meeting the appellant-father and the daughter is also
comfortable with him. A careful reading of the impugned order dated
22.10.2018 would show that the respondent-mother had raised five
objections for not allowing the father to spend time with the daughter in
para 8 of the impugned order, which we reproduce below:

“8. On the other hand, respondent has raised five fold objection
against the same which are as under;

1st objection- That petitioner is only manipulating the facts and is
not interested in actual visitation of child. There were numerous
occasions, when he unilaterally cancelled the visitation and left
the child clueless about visitation.

2nd objection- That child being a girl child, aged about 10 years
have specific needs which can only be cared by mother and
petitioner would be oblivious of any such requirements.
3rd objection- That petitioner was already having visitation of
entire day and no purpose will be solved by extending the

MAT.APP.(F.C.) 329/2018 Page 2 of 5
visitation overnight. It is stated that petitioner has no place in
Delhi for keeping the child for overnight, visitation and was
himself living with his brother and sister-in-law and one
adolescent nephew. There is also an apprehension of sexual
harrasment of the child during overnight visitation by the
adolescent male child.

4th objection- Petitioner has never paid any maintenance for minor
child at any point of time and was only pressing for his rights
without undertaking to fulfill his obligations.
5th objection- That the plea of petitioner had been repeatedly
rejected by various courts. There is no change in circumstances
and petitioner is only interested in harassing and forcing the
respondent to settle the property disputes in the garb of
visitation/guardianship of minor child.”

7. In the case of Mohan Kumar Rayana vs. Komal Mohan Rayana
reported at (2010) 5 SCC 657, the custody of the daughter was given by
the Family Court to her mother which was also affirmed by the High
Court. While the Hon’ble Supreme Court did not interfere in the
custody given to the mother, it was held that the welfare of the minor is
of paramount importance. The relevant para 25 reads as under:

“25. Having the interest of the minor in mind, we decided to
meet her separately in order to make an assessment of her
behavioural pattern towards both the petitioner as well as the
respondent. Much against the submissions which have been
made during the course of hearing of the matter, Anisha
appeared to have no inhibitions in meeting the petitioner father
with whom she appeared to have an excellent understanding.
There was no evidence of Anisha being hostile to her father
when they met each other in our presence. From the various
questions which we put to Anisha, who, in our view, is an
extremely intelligent and precocious child, she wanted to enjoy
the love and affection both of her father as well as her mother
and even in our presence expressed the desire that what she

MAT.APP.(F.C.) 329/2018 Page 3 of 5
wanted most was that they should come together again.
However, Anisha seems to prefer her mother’s company as the
bonding between them is greater than the bonding with her
father. Anisha is a happy child, the way she is now and having
regard to her age and the fact that she is a girl child, we are of
the view that she requires her mother’s company more at this
stage of her life.”

8. In the case of Vivek Singh v. Romani Singh reported at (2017) 3 SCC
231, the Hon’ble Supreme Court in para 18 observed as under:

“18. The aforesaid observations, contained in para 31 of the
order of the High Court extracted above, apply with greater
force today, when Saesha is 8 years’ old child. She is at a
crucial phase when there is a major shift in thinking ability
which may help her to understand cause and effect better and
think about the future. She would need regular and frequent
contact with each parent as well as shielding from parental
hostility. Involvement of both parents in her life and regular
school attendance are absolutely essential at this age for her
personality development. She would soon be able to establish
her individual interests and preferences, shaped by her own
individual personality as well as experience. Towards this end,
it also becomes necessary for parents to exhibit model good
behaviour and set healthy and positive examples as much and as
often as possible. It is the age when her emotional development
may be evolving at a deeper level than ever before. In order to
ensure that she achieves stability and maturity in her thinking
and is able to deal with complex emotions, it is necessary that
she is in the company of her mother as well, for some time.”

(Emphasis Supplied)

9. We may also note that the impugned order dated 22.10.2018 passed by
the learned Family Court has not been challenged by the respondent-

mother and the Family Court has dealt all the objections raised by the
respondent-mother. To meet the ends of justice and having regard to the
fact that the respondent-father will be traveling from Dubai only to

MAT.APP.(F.C.) 329/2018 Page 4 of 5
meet his daughter, who is attached to her father, a little extra time will
go a long way for developing the bond between the father and the child,
which already exists.

10. Accordingly, the respondent-father would be entitled to pick up the
child from the child’s school on every Friday and the child would spend
overnight on Friday and Saturday with the father and the appellant-
father would hand over the custody of the child to her mother on
Sunday at 2 p.m. instead of 4 p.m.

11. During the time of visitation, the respondent-mother would be at liberty
to speak to her daughter over the telephone including face time and the
appellant-father will not deprive the daughter from speaking to her

12. With the above modifications, the appeal and the pending application
being C.M.54109/2018 stand disposed of. The copy of this judgment be
given Dasti as prayed.


MARCH 25, 2019

MAT.APP.(F.C.) 329/2018 Page 5 of 5

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