HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 1258 / 2015
Parvati W/o Ramesh Kumar, D/o Chunni Lal Kamma, aged about
30 years, resident of Ward No.45, Near Gayatri Temple, Churu at
present Ward No.31, Near Harijan Bagichi, Ratangarh, District
Churu.
—-Petitioner
Versus
1. State of Rajasthan
2. Ramesh Kumar S/o Onkarmal, resident of Ward No.45, Bhutiya
Bas, Near Gayatri Temple, Churu.
3. Onkarmal S/o Bhinva Ram, resident of Ward No.45, Bhutiya
Bas, Near Gayatri Temple, Churu.
4. Smt. Taramani W/o Onkarmal, resident of Ward No.45, Bhutiya
Bas, Near Gayatri Temple, Churu.
—-Respondents
__
For Petitioner(s) : Mr. I.R. Choudhary.
For Respondent(s) : Mr. R.K. Bohra, Public Prosecutor for the
State.
For Respondent Nos.2-4 : Mr. N.L. Joshi.
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
20/04/2017
Unsuccessful in getting visiting rights to meet her children
before both the Courts below and refusal of appellate Court to
enhance the interim maintenance amount, mother of three minor
children and wife of respondent No.2-Ramesh Kumar, petitioner-
Parvati, has preferred this revision petition under Section 397/401
Cr.P.C. The petitioner has set up a case that she was forced to
leave her matrimonial home after suffering ill-treatment and
harassment for years together. A fact of great significance is also
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[CRLR-1258/2015]
highlighted by the petitioner that respondents made an attempt to
strangulate her for bringing inadequate dowry. Initially, petitioner
assailed the impugned orders by filing petition under Section 482
Cr.P.C. but later on, considering her request, the same is treated
as revision petition under Section 397/401 Cr.P.C.
Succinctly stated, the facts of the case are that petitioner-
Parvati was married to respondent No.2-Ramesh Kumar on 26 th of
February, 2001 as per Hindu rites and rituals at Ratangarh and out
of wedlock three children were born. As per version of the
petitioner, during subsistence of matrimony for more than a
decade she has suffered humiliation, cruel-treatment and beatings
at the hands of husband and her in-laws. On many occasions
petitioner’s parents were abused and false imputations were made
against her chastity. Cruelty was perpetrated on her for bringing
inadequate dowry and respondents’ unlawful demand of property
or valuable securities continued unabatedly and forced her to
leave matrimonial home. Highlighting and emphasizing all the
allegations, petitioner eventually knocked the doors of Courts and
filed an application under Section 12 of the Prevention of Women
from Domestic Violance Act, 2005 (for short, ‘Act of 2005’) before
Additional Chief Judicial Magistrate, Ratangarh (for short, ‘learned
trial Court’) to claim maintenance at the rate of Rs.5,000/- per
month with interim relief of visiting rights to meet her children and
interim maintenance.
The learned trial Court, by its order dated 13 th of January,
2015, granted interim maintenance to the petitioner for a sum of
Rs.2,500/- per month but declined her prayer for visiting rights to
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[CRLR-1258/2015]
meet her children. Feeling aggrieved by the said order of the
learned trial Court petitioner approached Additional Sessions
Judge, Ratangarh (for short, ‘learned appellate Court’) by filing an
appeal but her that effort proved abortive inasmuch as learned
appellate Court neither enhanced the quantum of interim
maintenance nor allowed her visiting rights to meet her children.
The order dated 23rd of July, 2015, to this effect, of the learned
appellate Court is impugned in the instant revision petition.
At the outset, learned counsel for the petitioner submits that
both the Courts below have seriously erred in declining the prayer
of petitioner for visiting rights inasmuch as her afflictions have not
been examined in the light of provision contained under Section
21 of the Act of 2005. Learned counsel for the petitioner would
contend that she being mother, her right to visit children cannot
be curtailed even if she is having different place of her residence.
Learned counsel during the course of his arguments has not
pressed the prayer for enhancement of interim maintenance. In
support of his arguments, learned counsel has placed reliance on
following judgments.
1. Jyoti @ Rashmi Vs. State of Rajasthan Ors. [2014
(3) Cr.L.R.(Raj.) 1325]
2. Kalyan Roy Vs. Priyanka Roy (Banerjee) [2016 (1)
Crimes 228] (Calcutta High Court)
3. Vinay Gupta Vs. Saveri Nayak [2017 (1) Crimes 53
(Orissa High Court)
4. Sandeep Kumar Thakur Vs. Madhubala [2016 (sup)
Him.L.R. 2611 (Himachal Pradesh High Court)
5. Vikas Agarwal Vs. Geeti Mathur [M.A.T. APP. (F.C.)
171/2016 (D.B. Delhi High Court).
(4 of 7)
[CRLR-1258/2015]
Per contra, learned counsel for the respondents submits that
in view of concurrent finding by both the Courts below, no
interference in exercise of revisional jurisdiction is warranted. Mr.
N.L. Joshi, learned counsel for the respondents has urged that
petitioner has left the matrimonial home at her own volition,
therefore, she is not entitled for visiting rights to meet her
children and this aspect has been taken care of by both the Courts
below.
I have heard learned counsel for the parties and perused the
impugned order as well as order passed by learned trial Court.
There remains no quarrel that petitioner has staked her
claim for visiting rights as a mother to meet her children. As
biological mother, her concern for the well-being of her children
and to meet them periodically cannot be under-played. Section
21 of the Act of 2005 envisages with clarity and precision that in
appropriate cases, Magistrate at any stage of hearing of the
application for protection order or any other relief under this Act,
can grant temporary custody of any child or children to the
aggrieved person or to the person making an application on her
behalf. Merely because petitioner is having her different place of
abode cannot be a significant factor for denying her right to visit
her children. This Court in Jyoti @ Rashmi (supra) upheld the
order passed by Magistrate and allowed the mother visitation
rights.
In Kalyan Roy (supra), Calcutta High Court has allowed
visitation rights to mother and held:
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[CRLR-1258/2015]“However, the opposite party/mother should
not be deprived of the visiting right, as the child
also should develop her relationship with her
mother and enjoy the love and affection of her
mother. I am informed by Learned Counsel
representing both the parties that the opposite
party/mother may meet the minor daughter in the
residence of one Somnath Chatterjee who happens
to be the husband of sister-in-law of the opposite
party and who resides at Suri Housing Complex.
This visiting right of the opposite party/wife can be
exercised on 2nd and 4th Wednesday of every
month and the petitioner/husband must bring the
minor daughter to the house of Mr. Somnath
Chatterjee on the dates fixed by the court. In view
of my above findings, the judgment and order
passed by Learned Sessions Judge, Birbhum on May
18, 2015 in Criminal Appeal No.03 of 2015 by
reversing the order passed by Learned Magistrate is
hereby set aside.
The minor daughter Manisha will remain in
the custody of the petitioner/father temporarily till
appropriate order of custody is passed by Learned
District Judge under the Guardians and Wards Act.
The opposite party/mother will have the visiting
right to meet the minor daughter on 2nd and 4th
Wednesday of every month in between 9 O’clock in
the morning and 5 O’clock in the evening in the
house of Mr. Somnath Chatterjee who is residing at
Suri Housing Complex in the District of Birbhum.
The petitioner/father will escort the minor daughter
to the house of Mr. Somnath Chatterjee on the
scheduled date and time for exercise of visiting
right by the opposite party/mother. With the above
direction the Criminal Revision is disposed of.”
In Vinay Gupta (supra), Orissa High Court, while considering
power of the Court under Section 21 of the Act of 2005, duly
recognized power of Magistrate to grant visitation right to a parent
except when it has reasons to believe that such visitation would
be harmful to the interests of child or children. The Court held:-
“Section 21 of the P.W.D.V. Act further
empowers the Magistrate to make arrangements
for visit of the child or children by the respondent,
if necessary. However, the Magistrate can refuse to
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[CRLR-1258/2015]allow the respondent to visit the child of children if
he is of the opinion that any such visit would be
harmful to the interests of the child or children.”
In Sandeep Kumar Thakur (supra), H.P. High Court has also
recognized the right of a mother for visiting right to her child or
children.
In Vikas Agarwal (supra), Division Bench of Delhi High Court,
while considering the welfare of child, has laid emphasis that the
child be allowed to spend quality time with both the parents and in
appropriate cases Family Court may direct parents to access a
child counsellor and seek a report from the Counsellor. The Court
held:-
“The approach in law being, as far as possible,
to ensure the child meeting both parents and
spending quality time with both, instant case
warranted the learned Judge Family Court to direct the
parents to access a child counsellor and seek a report
from the child counsellor. Help of a trained person who
understands the behaviour of a child and the
personality of a child was warranted in the instant
case. Besides, two counsellors being attached with
each family court in Delhi, the learned Judge ought to
have taken the help of the counsellors as well.
Directions should have been issued to the child to
interact with the counsellors and the opinion of
thecounsellors used by the learned Judge.”
This Court, in Smt Shanti Devi Vs. Phuli Devi S.B. Civil Misc.
Appeal No.645/2016, decided on 14 th of March, 2016, duly
recognized the right of a mother for interim custody of a minor
child under Minority Guardianship Act, 1956. The Court has also
observed that paramount consideration, while granting interim
custody of a minor child, is to see moral and ethical welfare of a
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[CRLR-1258/2015]
child. It is also ruled by the Court that factum of re-marriage of
mother cannot disentitle her to claim interim custody of her minor
kids.
Needless to observe here that this Court has also
acknowledged visitation right of a mother, therefore, in totality of
circumstances, in my considered opinion, both the Courts below
have committed a manifest error of law and fact in declining the
prayer of petitioner for visitation rights to meet her children.
In view thereof, impugned order, to that extent, is liable to
be interfered with in exercise of revisional jurisdiction. The order,
declining prayer for visiting rights of the petitioner, are not
satisfying the test of judicial propriety, therefore, order of learned
appellate Court as well as learned trial Court, to that extent, is set
aside. The petitioner is allowed to visit her children every
weekend until final decision of her main petition under Section 12
of the Act of 2005. The time and place where she can meet her
children may be decided by the learned trial Court on such terms
and conditions as may be deemed just and appropriate by the
learned trial Court.
The petition is, accordingly, allowed in part as indicated
hereinabove.
(P.K. LOHRA), J.
Twinkle/43
