Karnataka High Court
Smt. Vaishnavi Prabhakaran vs Sri. Goldie Sharma on 8 July, 2024
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NC: 2024:KHC:25856
WP No. 9885 of 2024
C/W WP No. 11842 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 9885 OF 2024 (GM-FC)
C/W
WRIT PETITION NO. 11842 OF 2024 (GM-FC)
W.P.NO. 9885/2024
BETWEEN:
SMT. VAISHNAVI PRABHAKARAN
W/O GOLDIE SHARMA,
AGED ABOUT 41 YEARS,
R/AT FLAT NO.3073,
PRESTIGE SUNRISE PARK BIRCHWOOD,
ELECTRONIC CITY PHASE I,
NEOTOWN ROAD,
BANGALORE- 560100.
...PETITIONER
(BY SRI. CHANDRANATH ARIGA K., ADV. FOR
SRI.VEERESH MAHESH UPPIN, ADV.)
Digitally AND:
signed by
MEGHA SRI. GOLDIE SHARMA
MOHAN S/O JAGADISH SHARMA,
Location: AGED ABOUT 42 YEARS,
HIGH COURT R/AT NO.P-267/1, CIT SCHEME VIM,
OF NEAR KANKURGACHI RAILWAY BRIDGE,
KARNATAKA KANKURGACHI S O, KOLKATA,
WEST BENGAL-700054.
...RESPONDENT
(BY SRI. ADAB SINGH KAPOOR, ADV. FOR
SRI R.K. MASUR, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO MODIFY THE ORDER DATED
21.12.2023 ON I.A. NO.III IN M.C.NO.402/2022 ON THE FILE OF
SENIOR CIVIL JUDGE BANGALORE RURAL (ANNEXURE-K).
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NC: 2024:KHC:25856
WP No. 9885 of 2024
C/W WP No. 11842 of 2024
W.P.NO.11842/2024
BETWEEN:
SRI. GOLDIE SHARMA
S/O LATE MR. JAGADISH SHARMA
AGED ABOUT 41 YEARS
R/O FLAT NO.305, B WING
3RD FLOOR, LODHA ALTIA (TOWER 8)
LODHA NEW CUFFE PARADE (GATE NO.5)
NEAR TRUCK TERMINAL
WADALA, MUMBAI-400037.
...PETITIONER
(BY SRI. ADAB SINGH KAPOOR, ADV. FOR
SRI AMOGH R. MASUR, ADV.)
AND:
VAISHNAVI PRABHAKARAN
D/O B.S. PRABHAKARAN,
AGED ABOUT 41 YEARS,
R/AT FLAT NO.3073,
PRESTIGE SUNRISE
PARK BIRCHWOOD, NAEOTOWN
ELECTRONIC CITY PHASE-1,
ELECTRONIC CITY, BENGALURU
KARNATAKA - 560100.
...RESPONDENT
(BY SRI. CHANDRANATH ARIGA K., ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT, MORE IN
THE NATURE OF WRIT OF CERTIORARI TO MODIFY AND ENHANCE
THE DURATION OF INTERIM CUSTODY GRANTED TO THE
PETITIONER VIDE THE IMPUGNED ORDER DATED 21.12.2023
PASSED BY SHRI ABDUL SALEEM, LD. ADDL. SENIOR CIVIL JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU IN THE CASE TITLED AS
"VAISHNAVI PARABHAKARAN VS. GOLDIE SHARMA" IN IA NO.3 OF
M.C. NO.402/2022 (ANNEXURE-A) TO THE EXTENT THAT THE
PETITIONER BE DIRECTED TO GIVE THE RESPONDENT PHYSICAL
OVERNIGHT ACCESS OF BOTH THE MINOR CHILDREN ON EVERY
WEEKEND FROM FRIDAY AT 7.00 PM TILL SUNDAY 7.00 PM.
THESE PETITIONS ARE COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:25856
WP No. 9885 of 2024
C/W WP No. 11842 of 2024
ORDER
Aggrieved by the order passed on I.A.No.3 in M.C.No.402/2022 dated 21st December 2023, both the father and mother are before this Court. Mother's writ petition is numbered as W.P.No.9885/2024 and Father's writ petition is numbered as W.P.No.11842/2024.
2. The mother had filed M.C.No.402/2022 seeking divorce. In that, an application I.A.No.3 is filed by the father praying for visitation rights in respect of minor children a boy and a girl who are aged 9 and 7 years, respectively. The reliefs that are sought by the father are as follows:
"(1) That the Petitioner be directed to give the Respondent physical overnight access of both the minor children on every Friday at 7.00 p.m. till Sunday at 7.00 p.m. alternatively That the Respondent be entitled to physical weekend visitation qua the minor children, from 12.00 p.m. to 6.00 p.m., each on Saturday and Sunday, while the Petitioner shall retain custody of the minor children for the remaining duration of the week;-4-
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 (2) That the Respondent shall be entitled to visitation rights to the children from 4 - 7 p.m. on all major festivals, birthdays, holidays and special occasions;
(3) That the Respondent shall be entitled to temporary custody of the minor children for their first half (50%) of all of their vacations (including inter-alia, summer vacation, winter vacations, end of school year vacations) of the children, while the Petitioner shall have custody for the remaining half of such vacations;
(4) That each party shall be entitled to daily audio/ video calls for a duration of 30 minutes with the children between 6 - 7 p.m., during the children's stay with the other party;
(5) That the Petitioner be directed to consult and include the Respondent in the day-to-day decision making as well as any and all major decisions (such as, inter alia change of schools/academic curriculum) of both the minor children and take decisions about the children after the written approval of the Respondent;
(6) That the Petitioner be directed to provide all updated school details, parents meetings, report cards, medical records of the minor children to the Respondent.
(7) That the Hon'ble Court may pass any further order(s)/direction(s) as deemed fit in the interest of justice and equity."
3. It is the case of the father that he had filed G & WC petition numbered as D10/2022 before the Court at -5- NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 Mumbai, later the same was transferred to Bengaluru and numbered as M.C.No.357/2023. It is stated that the father had filed a petition before the Honb'le Apex Court to transfer the petition filed by the mother to the Family Court at Mumbai. The mother had also approached the Honb'le Apex Court seeking transfer of G & WC petition filed by the father at Mumbai to the Family Court at Bengaluru. Both the petitions were disposed of, whereby, the petition filed by the mother was allowed and G & WC pending at Mumbai Court is transferred to the Court at Bengaluru. The Honb'le Apex Court had granted access to the father through video conference on Saturday and Sunday at 4.00 p.m., for minimum period of 30 minutes, subject to extension mutually agreed between the mother and father. It is the grievance of the father that in spite of specific orders from the Honb'le Apex Court, he was not allowed to communicate with both the children and the order of the Honb'le Apex Court was not complied with.
As such, he has come up with the present application.
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4. The mother had filed her objections stating that the father is addicted to drinking, playing poker games, dance bars, escorts, drugs and addicted to all bad vices and accuses of his violent behavior and if weekend rights are granted, it would affect the extra curricular activities of the children. It is stated that the father is of despicable behavior and if he is permitted visitation rights on major festivals, it is not conducive to celebrate such festivals. It is also the case of the mother that the children dislikes the father and they do not like to go to him. It is her case that she is in a better position to give better education to the children and even during her stay at Mumbai, she was taking responsibility of their education. It is also alleged that the father is having extra marital affairs and it is not good for the children to have any access with the father.
5. The family court while passing the order had taken note of the order passed by the Honb'le Apex Court and also the fact that the allegations are leveled against both of them. The Court relying on the judgments of the -7- NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 Honb'le Apex Court in YASHITHA SAHU v/s STATE OF RAJASTHAN AND OTHERS1 has observed that as per the said decision, that the child is the victim in custody battles and though the parents otherwise love their children portrait the picture as if the other spouse is villain and he or she alone is entitled for custody of the child. The Court also observed that, in the said judgment it is held that a child of tenders years requires love, affection, company and protection of both parents and this is not only the requirement of the child, but it is the basic human right.
The Court had applied the said ratio in the above judgment had passed the following order:
"I.A.No.3 filed by the Respondent is hereby allowed to extent mentioned here below:
1. The Respondent-father is allowed to take both the children between 2.00 p.m. and 6.00 p.m. on every second and fourth Sundays.
Both parties are directed to mutually agree 1 2020 (3) SCC 67 -8- NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 upon venue, in order to facilitate the handing over of child, for picking and dropping.
2. The Respondent-father is entitled for interim custody of both children during the last 10 days each in the month of April and May (Summer Vacation).
3. The Respondent-father is entitled to have access to the children through video conferencing for 30 minutes on Saturdays and Sundays at 4.00 p.m.
4. Respondent-husband is entitled to visitation right to children from 5.00 p.m., to 7.00 p.m., on major festivals and birthdays of the children.
5. The Petitioner and Respondent shall not force or create any situation which would cause embarrassment to both the children during the above said periods.
6. When this matter has come up before this Court on 16.04.2024, this Court passed the following order:
"The present Writ Petition is filed questioning the visitation rights granted by -9- NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 the Court below by order dated 21.12.2023. The Order of the Court below reads thus, I.A.No.3 filed by the Respondent is hereby allowed to extent mentioned here below.
1. The Respondent/father is allowed to take both the children between 2.00 pm., and 6.00 pm., an every Second and Fourth Sundays. Both parties are directed to mutually agree upon venue, in order to facilitate the handing over of child, for picking and dropping.
2. The Respondent/father is entitled for interim custody of both children during the last 10 days each in the month of April and May (Summer Vacation).
3. The Respondent/father is entitled to have access to the children through video conferencing for 30 minutes on Saturdays and Sundays at 4.00 pm.,
4. Respondent/husband is entitled to visitation right to children from 5.00 pm., to 7.00 pm., on major festivals and birthdays of the children.
5. The petitioner and Respondent shall not force or create any situation which would cause embarrassment to both the children during the above said periods.
2. Learned counsel appearing for the petitioner/wife had filed several photographs, Whats App chats. It is submitted that the manner in which the father is living his life is not in the welfare of the children and giving overnight custody. The learned counsel for the respondent/husband had denied all those whats app chats and the submissions made on
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 behalf of the learned counsel for the petitioner/wife. He filed the photographs to show that how close the children are to the father before the mother took them. It is further submitted that he has filed a contempt petition before this Court as the wife has not honored the order of the Court and not permitting the husband to meet the children.
3. Learned counsel appearing for the petitioner/wife submits that the submissions made by learned counsel for the husband that he is exercising the visitation rights are not correct and in fact he has been calling the children through video calls.
4. This Court is not going to dwell into any of the submissions that are made by both the parties. The fact remains is that the parties have separated in the year 2021, from there on the husband did not have the opportunity to spend some good time with the children. In that view of the matter, as an interim measure, the order of the Court below is modified as follows:
i) The father from 17.04.2024 to 22.04.2024 can exercise the visitation rights from 10.00 am to 6.00 pm., at any public place.
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024
ii) Children must be dropped by the petitioner/wife by 10.00 am., at Kydoland- Kids Play Zone, Electronic City, Bengaluru. Again at 6.00 pm., on time the father shall also drop the children there.
iii) During the period the children are in the custody of the father, he shall facilitate the children to speak with the mother once in the morning and once in the evening.
iv) The mother shall make all her efforts to see that the father will be able to exercise visitation rights peacefully.
Post this matter along with W.P. F.R.No.11553/2024 on 23.04.2024.
5. Basing on what has transpired on the above dates, this Court will pass further orders.
6. Registry is directed to print the name of learned counsel for respondent Sri.Adab Singh Kapoor and Sri. Amogh Masur."
Thereafter, on 25.04.2024 another order is passed by this Court, which reads as follows:
"This Court by order dated 16.04.2024 granted visitation rights from 17.04.2024 to 22.04.2024, 10:00 a.m. to 6:00 p.m. and also observed that the mother shall make all her efforts to see that the father will be able to
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 exercise visitation rights peacefully. After exercising the visitation rights on the above mentioned dates, this Court had interacted with the father, mother and the children. To some extend, the children seem to be comfortable with the father, but one or two trivial issues are brought to the notice of the Court.
2. Learned counsel appearing for the father submits that he should have over night custody of the children. When the children are with the father, the children are comfortable for the whole day and once they go home and come back for the next day, it is taking some time for the father to make them comfortable. Learned counsel had relied on the judgment of the Hon'ble Apex Court, judgment of the High Court of Bombay and High Court of Karnataka stating that, if the father is not permitted to meet the children even after orders are passed by the Court, the Courts have taken extreme step of granting the custody of the children to the father for a period of one month. He submits that the father needs to have over night custody of the children during the summer vacation.
3. Learned counsel appearing for the mother submits that as per the earlier order passed by this Court, the time was fixed from 10:00 a.m. to
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 6:00 p.m., which was too hectic for the children and they felt tired spending that much time outside the house. He also submits that the father was little angry on them and he pulled the hand of the boy. He submits that the children are not so comfortable spending time with the father and over night custody cannot be granted in the light of the behavior of the father and the material that is placed before this Court. He submits that as the children are not interested to meet the father, it would not be in the interest of the children to grant the visitation rights for such a long time and also granting over night custody.
4. Having heard the learned counsels on either side, perused the entire material on record. This Court had interacted with the children. It is an undisputed fact that from the last two and a half years, the father did not meet the children and by the order passed by this Court on 16.04.2024, he has exercised the visitation rights. Several judgments are cited by the learned counsel for the petitioner, but this Court is not going into those issue at this point of time. It is not in the interest of the children to compel them to stay over night with the father. In the considered opinion of this Court, while dealing with the children, things have to be taken slowly, in a
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 gentle way, considering the welfare of the children. Accordingly,
i) The father can exercise visitation rights on 27.04.2024, 28.04.2024, 04.05.2024, 05.05.2024, 11.05.2024, 12.05.2024, 18.05.2024, 19.05.2024, 25.05.2024 and 26.05.2024, between 10:00 a.m. to 4:00 p.m.
ii) The father can meet the children in the public places and he shall inform the mother where he is taking the children and while the children are with the father, the father should see that they have video/audio calls with the mother three times i.e., morning, afternoon and evening.
iii) The Court below had permitted the father to have the video call access on Saturday and Sunday. As he is exercising visitation rights on those days, the father can have the video call on Monday and Tuesday between 10:00 a.m. and 10:30 a.m.
iv) The father shall take into consideration the likes and dislikes of the children.
v) Basing on what transpires while the father is exercising the visitation rights, further orders would be passed by this Court.
vi) The father and the mother shall not record videos of the children.
vii) The father shall pick up the children near Pizza Hut which is near to the house of the mother.
Heard-in-part.
Post these matters on 30.05.2024."
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 The father, mother and the children shall be present before this Court on 30.05.2024 and this Court will interact with them in the chambers at 2:30 p.m. Thereafter, another order came to be passed on 14.06.2024 and also on 19.06.2024. The latest order dated 19.06.2024, whereby the father was permitted to exercise his visitation rights on 23.06.2024 and 30.06.2024 i.e., on Sundays between 10.00 a.m. to 3.00 p.m. and also permitted to make video call on Saturday and Sunday between 10.00 a.m. and 10.30 p.m. At the request of both the counsels today the matter is taken up for final disposal.
7. Affidavits are filed by the mother on 14.06.2024 and 19.06.2024. In the affidavit that is filed on 14.06.2024 it is stated that during the visitation on 11.05.2024, when she took the children to the agreed location, in spite of her request, the children did not go to the father. As the children did not get down from the car, the father shouted and made allegations against her. Because of this attitude,
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 the children are not interested to meet him and it has affected the psychological behavior of the children creating fear in their minds and mistrust due to their constant fighting. It is stated that the visitation that had taken place was not smooth and congenial for the children. It is also stated that the father had multiple conversations with the children and approach of the father is not responsible and wantonly lavishing them with junk food, limitless games at video arcades, amusement parks and talking to them about meals at 5 Star hotels. He is consciously creating a bias on financial status with statements like "purchase entire Wonderla for you" which is impacting the children adversely. It is stated that children are complaining about stomach ache as they are not taking adequate water and avoiding going to the washrooms, untimely meals and constant exposure to public bathrooms. They are complaining about several issues and also stated that the father is not timely returning the kids as per the orders. During the visitation though this Court has directed the mother to have access through
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 audio and video calls, but the father was not permitting.
She has narrated an incident, where the daughter was sent to public washroom unsupervised and she has filed certain prescriptions where the children were taken to the hospital for treatment.
8. In another affidavit which came to be filed on 19.06.2024 wherein it is stated that both children are minor and are of impressionable age. It is the case that the father has exposed them to his extra martial adulteress relationship and they are used as pawns to further his interests. It is stated that the children have been introduced to the adulteress partner as "NAYI MUMMY" or "New Mother" and that is distressing and unacceptable for the emotional well-being of the children.
She has also mentioned about Whatsapp conversation with one Mr.Kethan Manek who is the husband of a woman, with whom the respondent-father allegedly having adulteress relationship. It is also stated about his conversation with an individual name Sweety which shows
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 that he is continuing in adulteress relationship. It is also stated that the respondent father has not taken care of the children and he never behaved like a good father. He is also making comments against the mother which has also affected the children and they are not interested to see him. An allegation is also made about the father not taking care of his mother and this kind of behavior from the father will also have an impact on children's future. It is stated that now schools are resumed and the children have some assignments during the weekends. They have also expressed a desire to spend some time during weekends with neighbourhood friends. In view of the Court orders, they feel embarrassed to explain their absence to their friends. Extending the visitation to overnight stay will further adversely impact both their studies and their ability to develop healthy social interactions with their peers.
9. As such, it is stated that being a mother, a duty is cast upon her to look after the welfare of the children and
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 she is duty bound not to consent for overnight custody of the children. She has filed whatsapp conversation between her and one Mr.Ketan Manek; conversation between her and her husband and also how many times she called while they were in visitation and how many times they spoke and how many times she could not speak with them. She also gave a table about video calls and what had happened.
10. The husband for both affidavits, two replies/ objections were filed. For 14.06.2024 affidavit, objections dated 19.06.2024 is filed and for an affidavit dated 19.06.2024, objection dated 01.07.2024 filed by the father. In the first objection dated 19.06.2024, it is stated that whenever the visitation takes place, when the mother is around, the behavior of the children is altogether different and once the mother leaves the place, they are very playful with the father. It is the case of the father that because of the bonding between the children and the father, the mother is becoming very insecure she
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 demanded an amount of Rs.10.00 crores in the maintenance proceedings she is using the kids as pawns and she has no concern for psychological well-being of the children and this amounts to parental alienation. It is the case of the father that children are given the name of maternal grandfather instead of father's name. It is stated that he has given the list of dates and what transpired on those visitation rights, which reads as follows:
Details of the visitation between the Respondent and the children are described herein:
DATE OF REMARKS VISITATION 27th April The Respondent reached the pickup point at 2024 9:55am and the children were handed over at 10:33am. The children visited Loco bear and had Milk Shakes, Mushroom Pizza, Lemonade. The Petitioner called the Respondent to talk to the children at 12:08 pm (6 min); 2:08pm (7 min); 3:07 pm (7 min). The children were handed back at 4:06pm.
Children were given options where they wanted to go. Options included Kydoland, Loco Bear, Time zone, Fun Zone or any other. Children said they love Loco Bear and wanted to go there. Children had a great time as they did activities like Wall Climbing, Zip Ride, Trampoline play area and even tried bowling.
28th 2024 The Respondent reached the pickup point at
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 April 10 am and the children were handed over at 10:10am. The children visited Ganesh Temple, Royal Meenakshi Mall (Movie Godzilla Vs Kong) and had Nachos, Popcorn, Milk Shakes, Burger. The Petitioner called the Respondent to talk to the children at 11:14 am (5 min); 12 noon (7 min); 3:33 pm (10 min). The children were handed back at 4:43pm.
Ishan wanted to have a lazy day. He was keen to go for a movie. Aarya agreed for it. They had already seen Godzilla Vs Kong movie but were happy to see it again. The Respondent and the children first went to a Ganesh Temple. Then, the Respondent and the children went to Meenakshi Mall for a show from 12:20 pm. The Respondent and the children played a bit in Children play area before they went to movie hall. Show ended by 2:30 pm. However, Children were playful and running around in the mall. Then they enjoyed eating burger at McDonald's. Despite several requests by the Respondent, the children moved in their own pace and ate at their own pace.
4th May The Respondent reached the pickup point at 2024 9:50 am and the children were handed over at 10:20 am. The children visited Star Hypermarket, Forum Mall-Time Zone, Salt Restaurant and had Milk Shakes, Tandoori Naan, Paneer Butter Masala. The Petitioner called the Respondent to talk to the children at 10:35 am (16 min); 2:57 pm (13 min); 4:09 pm (9 min). The children were handed back at 4:30 pm. Children initially showed excitement to go to waterpark. However, the Respondent and the children needed to get their swimwear's. So, they stopped at a mall. Children again were playful and delaying buying the water related items (swimwear, Sunscreen lotion). The Respondent requested Children to postpone going to Fun world for next day.
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 The Respondent called the Petitioner to check if she can send their swim wears next day. On the call she requested if the Respondent could feed them Roti/Naan + Sabzi instead of Burgers & Pizzas. The Respondent agreed for that. The Respondent and the children then went to Forum mall Time Zone and played before having our lunch. Children enjoyed playing and were not keen to rush back. During lunch, the Respondent asked Ishan if he knows his father's birthday, he quickly said the correct date (13th May). The Respondent told him that he would be happy to celebrate his birthday with them on 11th or 12th May. They suggested that the Respondent and the children will cut cake. Also, they said that since it's Respondent's birthday weekend, they would love to go to water park as they love playing in water. So, they agreed for a plan for the weekend of 11th May.
5th May The Respondent reached the pickup point at 2024 10 am and the children were handed over at 10:15 am. The children visited Fun World, ITC Fortune near Fun World and had Milk Shakes, Naan, Phulka, Paneer Butter Masala. The Petitioner called the Respondent to talk to the children at 12:18 pm (5 min); 3:41 pm (2 min); 4:34 pm (14 min). The children were handed back at 4:50 pm. The Respondent and the children went to Fun World and had a great time. On the way to Fun world, Children played with the Respondent in the car, they were sitting in his lap, pulling him and enjoying a great deal. Even at the Fun World, Children especially took the Respondent to their favourite rides. The Respondent and the children enjoyed, laughed and played a lot. Once they came out of water, Aarya informed that she doesn't like the ladies bathroom and she doesn't want to go there
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 to change. While there were local staff who were keen to help her, but she showed her discomfort. Aarya said that she found the changing / shower room of WonderLa better. So, the Respondent asked the driver to take them to the nearest 5-Star Hotel ITC Fortune, which was 5-6 min away. Aarya was taken to swimming pool area where she changed in ladies' changing room while the Respondent stood outside. She took her time to shower, shampoo and change her clothes by herself. The Respondent and the children then went to the restaurant of the same hotel and quickly had food, as Children were very hungry. The Respondent tried updating this to the Petitioner before going to ITC, however, the Petitioner did not respond to his calls. The Respondent's network was not working near the swimming pool area, hence when she tried calling back, the Respondent was not reachable. As Aarya took much time to change, the Petitioner was upset. She then asked the Respondent to rush back without letting Children eat their lunch. The Respondent told her that Children are very hungry and it will be unfair for them to remain hungry. The Respondent and the children returned by 4:50pm and the Petitioner seemed furious due to delay.
11th May The Respondent reached the pickup point at 2024 9:55 but the Petitioner left without handing over the children at 11:15. The children visited Forum Mall, Time Zone, PVR Playhouse (Movie Sing 2: 4:30 to 6:30 pm) and ate Popcorn, Nachos. The Petitioner called the Respondent to talk to the children at 4:17 pm (3 min); 4:23 pm (5 min); 4:33 pm (3 min); 6:32 pm (2 min). The children were handed back at 7:02 pm. It was surprising that despite a prior agreement with Children on the plan for the weekend (visiting WonderLa), children behaved very weirdly at the pickup time.
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 Shockingly, children refused to go. The Petitioner got the Children in car and walked away from the car. Children locked themselves inside. When the Respondent. asked her to get them out, she threw the car keys on the road, indicating the Respondent to pick the keys and deal with Children. She eventually took the Children back without handing them over. The Respondent kept waiting at the same place for next couple of hours. Then she informed that she will get children again after lunch. Children came back at 2:14pm and this time agreed to go with the Respondent. The Respondent and the children went to watch a movie Sing 2, which Children thoroughly enjoyed. The children ran and played in the mall freely and comfortably.
12th 2024 The Respondent reached the pickup point at May 9:55 am and the children were handed over at 10:25 am. The children visited Time Zone, Motherhood Hospital (For Ishan's stomach- ache) and ate Milk Shake, Juice. The Petitioner called the Respondent to talk to the children at 12:04 pm (3 min); 12:51 pm (1 min); 1:32 pm (3 min). The children were handed back at 2:13 pm. Children said that it is Mother's Day and they want to spend time with their mother. The Respondent spoke to them and promised them that the Respondent and the children can return early that day to have lunch with their mother. Ishan and Aarya were initially refusing to go. While the Respondent was talking to them as they sat in the car, the Petitioner started making Video recording of the same. When the Respondent looked at her, she hid her phone and moved away. The Respondent went to her father and told him that despite clear direction from court, she is still making recordings. He went and spoke to the Petitioner, and then asked the Respondent to directly convey her the same over
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 WhatsApp. When the Respondent told it to the Petitioner, she denied. Children were earlier reluctant to go but then later they agreed. Ishan complained about stomach- ache. The Respondent was planning to return the Children by 1 pm. However, the Petitioner asked the Respondent to take them to doctor. The Respondent looked for different hospitals / nursing homes but none of the paediatricians were available as it was Sunday. Finally, the Respondent found a Paediatric Doctor on emergency duty in Motherhood hospital. She checked and suggested that the pain in stomach is either due to worms or gastric. There were no signs of any infections. Ishan wanted his mother to come to hospital (2 km away from pickup point) to pick him rather than going to Pizza hut. Accordingly, the Respondent requested the Petitioner, if she would be comfortable doing that. She agreed and came there to take the Children.
18th 2024 The Respondent reached the pickup point at May 9:50 am and the children were handed over at 10:55 am. The children visited Loco Bear and ate Milk Shakes, Pizza, Lemonade, Naan, Paneer Butter Masala. The Petitioner called the Respondent to talk to the children at 12:28 pm (3 min); 1:28 pm (4 min); 3:22 pm (10 min). The children were handed back at 3:53pm.
Children were misbehaving in the morning as if they were getting some kind of push / direction to misbehave. Ishan made papers balls from newspaper and started to throw at the Respondent. Then Aarya joined in making the paper balls and Ishan were throwing them at the Respondent. As the Respondent remained calm with this act, the Petitioner 's father was disappointed and asked Ishan to stop it. Ishan must have thrown 25 or more paper balls which was picked up by the Petitioner 's father and the Respondent from street and the
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 Respondent. Ishan then picked up stones and started throwing at the Respondent. At this point, the Petitioner 's father lost his cool and said "Ishan -I have been kind, but now I will become harsh, stop misbehaving". But Ishan completely ignored his grandfather's word and was very disrespectful towards him. Ishan also said that "I am a kid, and I can do whatever I want, nobody can stop me". At this point of time the Respondent gave him a stare. The Petitioner kept enjoying this whole drama from distance. After 45 min, she came and spoke to Children and they agreed to come.
When the Respondent and the children reached Loco Bear, Ishan said his name was "Ishan Prabhakaran" instead of "Ishan Sharma" at the registration counter of Loco Bear.
19th May The Respondent reached the pickup point at 2024 10:07am and the children were handed over at 10:40 am. The children visited Time Zone, PVR (Movie Garfield), Restaurant Salt and ate Popcorn, Nachos, Naan, Paneer Butter Masala. The Petitioner called the Respondent to talk to the children at 12:00 pm (5 min); 12:24 pm (2 min); 2:55 pm (3 min). The children were handed back at 3:53pm.
The Petitioner again delayed the handover of the children in the morning. The Respondent and the children watched the movie, Garfield. Children behaviour completely changed once the Petitioner left. While the Petitioner was accusing the Respondent of rough behaviour/ scaring Children, children were playing with him in car and laughing a lot.
25th May The Respondent reached the pickup point at 2024 09:55 am and the children were handed over at 11:03 am. The children visited Time Zone, Funana Banana, Restaurant and ate Sweet Lime Juice, Naan, Paneer Makhani. The
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 Petitioner called the Respondent to talk to the children at 12:27 pm (1 min); 12:40 pm (2 min); 3:11 pm (2 min). The children were handed back at 4:18 pm. The Petitioner again delayed handover of the children. The children would refuse to get out of car. On this day, they went out in a nearby garden (triangular garden in front of Electronic City Police station). The Respondent asked the Petitioner to leave as Children are out of her car and after the Petitioner goes, Children will happily come and leave with the Petitioner in no time. The Petitioner said bye to them, and Children did not say anything. While she was driving away, she again stopped the car and shouted their name. At this time, Children ran out of garden and again went to the Petitioner. There was again an unnecessary delay in handing over the Children. Eventually, Children were handed over to the Respondent after 11 am.
26th May The Respondent reached the pickup point at 2024 09:55 am and the children were handed over at 10:07 am. The children visited Innovative Film City and ate Cookies, Cupcake, Sugarcane Juice, Strawberry Milk Shake, Pav Bhaji, Lemonade. The Petitioner called the Respondent to talk to the children at 11:20 pm (3 min); 1:40 pm (3 min); 4:08 pm (2 min). The children were handed back at 4:55 pm. Children wanted to go to water park. Respondent communicated the same to the Petitioner a day in advance. The Petitioner said that it will bebetter for the Respondent and the children to not go to the water park as Aarya finds it uncomfortable to change in water park changing room. Next day morning she also said that Ishan has headache, so water park is avoidable. The Respondent told her to send the Loco Bear
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 Socks. However, the Petitioner still sent kid's swim wear. When Children sat with the Respondent, they started saying that they want to go to water park only. The Respondent tried convincing Aarya, but Aarya said that she had problem with the changing room of Fun World, not WonderLa. the Respondent called the Petitioner and requested her to help convince Children. But the Petitioner also failed to convince them. So, the Respondent and the children headed towards WonderLa. When they were just 3- 4 min away from Wonderla, Ishan said that he is again having headache. The Respondent immediately asked driver to turn to car and take them to loco bear. Aarya became very upset as she said she didn't want to go to any place other than water park. Then the Respondent and the children found out that there is another place called "Innovative Film City" nearby. It had water park as well. They went there. Ishan wanted to eat something and after eating food, he said that he was having headache because he had not eaten his breakfast properly. The Respondent and the children went to couple of rides and adventure activity. After this, Children again started to push for going to water play area within Innovative Film City. The Respondent told them that he and the children will get really late if at this time they decide to enter water. The Respondent called the Petitioner again to request her to convince them against going to water park. She could not help. She said now it is on the Respondent to decide and handle it. The respondent took them to water play area as the Respondent monitored them play from outside. When they were done playing (after several extensions and requests), they went to changing room. Aarya refused to go to ladies room by herself. The Respondent and the children had their lunch, but as the food court was crowded, it took some time before they could finish our food. All this led to
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 delay in return. The Respondent had told the Petitioner that his return flight was at 7:15pm and such delay may result in him missing his flight. The respondent had no intention for delayed handover but it was purely kid's wishes and comfort that delayed the handover.
9th June The Respondent reached the pickup point at 2024 1:59pm and the children were handed over at 2:44 pm. The children visited Loco Bear and ate Hot Chocolate, Watermelon Juice. The Petitioner called the Respondent to talk to the children at 5:04 pm (2 min). The children were handed back at 6:25 pm. The Petitioner continued to delay the handover of the children. Initially, Ishan said that he doesn't want to go anywhere without his mother and wanted her to join as well. The Respondent offered him that the Respondent and the children can simply go for a drive for couple of hours around Bengaluru and come back. Finally, both Children agreed. The moment they said in the car, Ishan said that he wants to go to Loco Bear. Aarya agreed. The Respondent and the children went to Loco Bear and Children had a great time. They did wall climbing and played in trampoline area. As Children had their lunch before coming, they had hot chocolate (Ishan) and Watermelon juice without Ice (Aarya) this was as per the Petitioner 's request of not giving them any cold stuff. There was queue in wall climbing because of which it took much longer, and the Respondent and the children got delayed.
It is stated that everything went on well and he had taken utmost care of the children. He has also taken utmost
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 care even with regard to the food what they have taken.
He has also filed before this Court about the itinerary of between 17.04.2024 to 22.04.2024, which reads as follows:
ITINERARY OF VISITATION TIME AND PLACE TIME AND PLACE CHILDREN DATE PLACES VISITED CHILDREN WERE WERE HANDED BACK HANDED OVER 17.04.2024 Handed over Temple; Nexus Mall Handed back at at 10:00 am (Time Zone & Food 5:45 pm Court) - Koramangala;
Kydoland 18.04.2024 Handed over Kydoland (11-12 noon); Handed back at at 10:10 am Loco Bear (1 pm to 5:30 6:25 pm Kids stayed pm) at Kydoland 19.04.2024 Handed over Kauvery Hospital, Handed back at at 10:50 am Electronic City; Kydoland 12:21 am at Pizza and asked (4 pm - 5:55 pm) Hut to go home the and rest.
Respondent Kids came back at
to take the 3:55 pm to
children to Kydoland and
Doctor. were handed back
again at 5:55 pm
20.04.2024 Handed over Vega City Mall (Kid's play Handed back at
at 10:10 am zone) - 11-12.30 pm, 6:15 pm
Food Court - 12:35 to
1:10; Curiosity Science
Centre (2:10 pm to 4:45
pm); Science Centre Café
(4:45 to 5:25pm)
21.04.2024 Handed over Bannerghata Wild Life Handed back at
at 10:15 am Safari, Butterfly Park and 5:57 pm
Zoo Kid's play area
(11:30 to 1:45 pm);
Nexus Mall Salt
Restaurant (2:40 pm to
4:00 pm); Nexus Mall
Time zone (4:05 pm to
5:20 pm)
22.04.2024 Handed over Wanderla (Amusement Handed over at
at 10:05 am Park) 7:10 pm as
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NC: 2024:KHC:25856
WP No. 9885 of 2024
C/W WP No. 11842 of 2024
children did not
want to leave
The invoices are filed with regard to food what the children have taken during the visitation and also Whatsapp communication between the mother and father wherein he mentioned about the court order on the video call, the response of the mother is that she is in office and Monday and Tuesday 10.00 a.m., she cannot manage the call.
11. In the objections dated 01.07.2024, denying the extra marital affairs and other things as stated by the wife. All the statements made with regard to the adulteress partner are denied. This cannot be considered by this Court in these proceedings. All these wild allegations are made only to deny the father's overnight custody of the children. It is stated that the father has always been co-operative in taking care of the children. In affidavit of the mother, it is stated that father is not taking care of his mother and it would have an impact on the children as to what they would learn from their father. It is stated that in fact the mother had filed a domestic
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 violence case against her mother-in-law and that goes contrary to the statement made before this Court on oath.
It is stated that he could not exercise visitation in spite of the orders passed by the Court on several occasions, he could not have the video call with the children and the mother is not co-operating.
12. Learned counsel appearing for the mother submits that the father can exercise alternative weekend visitation rights between 2.00 p.m. to 6.00 p.m. granted by the trial Court and even on festival days also they have no objection. But when it comes to the vacation and overnight custody of the children, considering the conduct and adulteress life he is living, it would not be congenial for the children to stay overnight with the father. It is stated that while granting visitation rights, it is not only right of the father, but ultimately the Court has to look at the welfare of the children. When the mother had filed several documents to show the conduct of the husband, all that speaks volumes about his character and if the
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 children are given overnight custody, it would have impact on their lives, who are at the very tender age of 9 and 7 years. It is stated that except for the Court orders and as the mother was pushing them to meet father, they are not interested to meet him because of his behavior and it is also stated that the father is very rude to the children.
Learned counsel relied upon a judgment of the Honb'le Apex Court in the case of SHAZIA AMAN KHAN AND ANOTHER v/s STATE OF ORISSA AND OTHERS2.
Paragraphs No.13, 14, 15, 16, 19 and 20 of the said judgment which read thus:
13. In Nil Ratan Kundu and another v. Abhijit Kundu [(2008) 9 SCC 413 : (2008 AIR SCW 5769)], this Court laid down the principles governing custody of minor children and held that welfare of the children is to be seen and not the rights of the parties by observing as under:
"Principles governing custody of minor children 2 AIR 2024 SC 1299
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024
53. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
xxxxxxxxx
55. We are unable to appreciate the approach of the Courts below. This Court in catena of decisions has held that the controlling consideration governing the custody of children is the welfare of
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 children and not the right of their parents."
[Emphasis supplied]
14. This Court has consistently held that welfare of the child is of paramount consideration and not personal law and statute. In Ashish Ranjan v. Anupam Tandon [(2010) 14 SCC 274 : (2011 AIR SCW 249)], this Court held as under:
"19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.
15. This Court in Roxann Sharma v. Arun Sharma [(2015) 8 SCC 318 :
(AIR 2015 SC 2232)], opined that the child is not a chattel or ball that it is bounced to and fro. Welfare of the child is the focal point. Relevant lines from para-No. 18 are reproduced hereunder:
"18.........There can be no cavil that when a court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly
- 36 -
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 thinks that the custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons....."
16. Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of. Reference can be made to Rohith Thammana Gowda v. State of Karnataka's case (supra). It was held as under:
"13. We have stated earlier that the question 'what is the wish/desire of the child' can be ascertained through interaction, but then, the question as to 'what would be the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. A careful scrutiny of the impugned judgment would, however, reveal that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose. We will explain the raison d'etre for the said remark."
17. xxxxxx
18. xxxxx
19. The fact that appellant No. 1, when custody of the child was handed over to her, was un-married and is now married having two children will also not be a deterrent for this Court to come to the conclusion that best
- 37 -
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 interest of the child still remains with the appellant No. 2 as the child is living with her ever since she was 3-4 months old and is now about 14 years of age having no doubt in her mind that she wishes to live with them.
20. In view of our aforesaid discussions, we find that the welfare of the child lies with her custody with the appellants and respondent No. 10. This is coupled with the fact that even she also wishes to live there. Keeping in view her age at present, she is capable of forming an opinion in that regard. She was quite categoric in that regard when we interacted with her. She cannot be treated as a chattel at the age of 14 years to hand over her custody to the respondent No. 2, where she has not lived ever since her birth. Stability of the child is also of paramount consideration."
13. Relying on the above judgment, learned counsel submits that while granting visitation rights, the Court is not bound by any statutes, but ultimate consideration should be the welfare of the children. It is submitted that the mother has filed an affidavit before this Court stating
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 that overnight custody is not good for the welfare of the children and it is not congenial in the welfare of the children.
14. Learned counsel for the father submits that by narrating the manner in which, the visitation rights have taken place and pursuant to the orders passed by this Court, it could be established before the Court that the father was having a good bonding with the children. It is submitted that in all those visitations that were exercised, what the father could feel is that the children are constantly tutored and on every day of the visitation, it is taking some time for them to settle and come out of the said tutoring of the mother. It is submitted that the mother has developed a sense of insecurity as the kids are being very much attached to the father. He submits that all kind of wild allegations that are leveled by the mother cannot be taken into consideration at this stage, as all these allegations are made only to deprive the father to have the overnight custody of the children and to
- 39 -
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 prejudice the mind of the Court. It is submitted that all these allegations are subject to proof and the same would be decided by the family Court. He submits that, this is not the appropriate stage where this Court can consider all those allegations. He also submits that the mother had filed Whatsapp conversation referring to one Mr.Ketan Manek wherein she had asked him to give all the details about the conduct of the father. Learned counsel submits that the whole endeavor of the mother is to collect information so that, that can be placed before the Court and father be deprived of his right of visitation. He submits that whatever is the conduct of either of the parties and whatever is the adulteress life as put forth by the wife, still several courts have taken a view that just because the person is living in adulteress life, that cannot be a ground to come to the conclusion that he or she is not good mother or a good farther and they cannot take care of their children. Relying on the judgments of Bombay High Court in the case of ABHISHEK ABHIJITH CHAVAN v/s GAURI ABHIJITH CHAVAN arising out of
- 40 -
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 W.P.No.4060/2024 disposed of on 19.04.2024, he submits that, that cannot be a ground to deny visitation rights of the father. He submits that this judgment of the Bombay High Court is upheld by the Honb'le Apex Court.
He relied on paragraphs 45 and 46 of the said judgment reads as follows:
"45. The submission made on behalf of the petitioner/husband as regards the adulterous behavior of the respondent/wife, according to me, these are the allegations which are made in the marriage petition by Husband before Family Court, filed in the year 2020. The said allegation has to be proved by leading evidence before the Family Court. Therefore, based on the allegations, the doubt as to whether the custody can be given to the wife will have no bearing. There is no doubt as held by the various judgments that not a good wife is not necessarily that she is not a good mother.
46. In the present case as regards, the allegations made by Husband are still to be proved. In the judgment of Vineet Gupta Vs. Mukta Aggarwal reported in 2024 SCC Online Del 678, it has been held that even though the allegations are proved as regards the wife's extra martial affair, still as far as the custody of the minor children is concerned, in a given case, the same can be granted to the wife."
- 41 -
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024
15. Further, learned counsel for the respondent also relied upon a judgment of the Delhi High Court in this regard in case of VINEET GUPTA v/s MUKTA AGGARWAL3. Paragraph 27 of the said judgment reads as follows:
"27. The evidence on record reflects that the respondent/mother frequently spent her time by taking leave from the office or otherwise with the third person, Amit Garg in whom she had special interest. While the overemphasis of the entire evidence has been to prove the extra-marital affair, but there is not an iota of evidence to show that whatever may have been the personal affairs of the respondent/mother, she in any way, failed to take care of the needs of the children. The respondent/mother may not have been a faithful or a good wife to the appellant/husband, but that in itself is not sufficient to conclude that she is unfit to have the custody of the minor children, especially when no evidence has been brought on record to prove that she in any manner, neglected to take care of the children or that her conduct 3 2024 SCC Online Del 678
- 42 -
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 has resulted in bad influence of any kind, on the children."
16. He also relied upon another judgment of Bombay High Court in the case of RATNAMALA v/s PANDURANG UDHAV ZATE4. Paragraphs 17 and 21 of the above judgment read thus:
"17. Another fact, for which definitely objection will have to be taken in respect of the observations in para No. 66 of the impugned Judgment, which are in respect of allegations of adultery. It appears that the opponent had produced on record the transcription of the mobile conversation between the applicant and the said person and the copies of their photos showing closeness along with his affidavit. That evidence has been considered by the learned Trial Judge without it was proved in all legal aspects. For the mobile conversation it appears, as there is absolutely no discussion, there was no mandatory certificate under Section 65-B of the Indian Evidence Act. So also, as regards the photos are concerned, it appears that the concerned photographer was 4 2021 SCC Online Bom 12437
- 43 -
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 not examined and these documents have not been separately exhibited. There was no opportunity to the wife to cross-examine the husband, and therefore, when, though the fact of adultery is alleged and it has not been proved by cogent and conclusive evidence by the husband, the Trial Judge ought not to have even considered it for a sentence also. Further, in para No. 68 the learned Judge went on to observe that those allegations regarding relationship of the wife and the said person were not without foundation or reckless. That was a factor, which has been taken by him for considering/deciding the custody of the children. This is totally illegal. When the full-fledged evidence was not led, the Court had not come to the conclusion that the allegations of adultery are proved, merely, because some documents have been produced, it cannot be taken as supporting evidence and then a conclusion can be drawn that wife/mother is not entitled to get custody It will have to be held that at this stage, in this matter, allegations of adultery are not proved by the husband. There was an opportunity for him to prove it by leading the appropriate evidence, which he has not availed.
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024
21. The procedure that was adopted by the learned Trial Judge was itself wrong. He ought to have given proper opportunity to lead the evidence to both sides. The point, which could not have been decided only on the basis of affidavits have been considered in that way. The learned Advocate for respondent though relied on Smriti Madan Kansagra's case (supra), it can be seen that in that case also there was oral evidence and the parties were allowed to cross examine each other. That means, the procedure that was contemplated was not merely on the basis of the affidavits and this ought to have been considered by the learned Trial Judge. This fact is also observed in Nil Ratan Kundu's case (supra). At the costs of repetition that the Hon'ble Supreme Court has stated that, "In deciding a difficult and complex question, a Court of law should keep in mind relevant statutes and the rights flowing there from, but such cases cannot be decided solely by interpreting legal provisions." Thereafter, how the guardian is to be selected has been laid down, and therefore, for proving comfort of the child, contentment, health, education, intellectual development and favourable surroundings etc., an opportunity should be
- 45 -
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 given to the parties to lead evidence. This Court feels that since the proper opportunity appears to have not been given to the parties to lead evidence, it is necessary to relegate the matter back to the Trial Court and in the meantime, till the decision of the said application on its merits, the custody of both the children deserves to be given to the mother."
17. It is submitted that, while granting custody or visitation rights, the Court has to look at the welfare of the child. Just because the children are residing with the mother where there is every scope for tutoring by her and basing on that, if the Court comes to the conclusion that the children are not interested to meet the father and if the father is not granted visitation rights, it would amount to parental alienation. It is submitted that if the father is not given overnight custody, it would be very difficult for him to develop bonding with the kids. He had relied a judgment of Honb'le Apex Court in the case of RUCHI
- 46 -
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 MAJOO v/s SANJEEV MAJOO5. Paragraph 72 of the said judgment reads as follows:
"72. For a boy so young in years, these and other expressions suggesting a deep- rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant or her parents can hardly be appreciated. What the appellant ought to appreciate is that feeding the minor with such dislike and despire (sic) for his father does not serve his interest or his growth as a normal child."
18. Learned counsel had relied on another judgment of the Honb'le Apex Court in the case of YASHITA SAHU referred supra, paragraphs 19, 20, 21 and 22 of the said judgment reads as follows:
"19. We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory 5 2011(6) SCC 479
- 47 -
NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 orders being passed in different jurisdictions. No hard-and-fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may, however, again reiterate that the welfare of the child will always remain the paramount consideration. Welfare of the child -- the paramount consideration
20. 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.
21. 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
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 must therefore be very wary of what is said by each of the spouses.
22. 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
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 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."
19. He had also relied on another judgment of Karnataka High Court in the case of D.JAWAHAR v/s MRS.PRIYA JOSE JOSHUA arising out of W.P.No.20190/2022 disposed of on 28th June 2023 wherein this Court had considered all the judgments of the Honb'le Apex Court in GAURAV NAGPAL v/s SUMEDHA NAGPAL6 and YASHITA SAHU v/s STATE OF RAJASTHAN AND OTHERS7 and a judgment of the Division Bench in MFA No.2786/2022 disposed of on 31.01.2023, wherein this Court had passed an order holding that, in case where the wife was not adhering to the orders of the Court where father was given interim custody for one month, directed the trial Court to interact with the child 6 (2009) 1 SCC 42 7 (2020) 3 SCC 67
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 and then pass appropriate orders. Further, the Court made it very clear that in the event, if the wife violates the orders passed by the Court with regard to visitation, the Court would be at liberty to pass appropriate orders in accordance with law, which could even be shifting of custody of the child to the hands of the father and the mother shall be solely responsible in the event Court is constrained to pass such order. Basing on this, learned counsel submits that interaction went on between the father and children shows that there is bonding between them, but for the interference and tutoring of the mother.
As such, he should be given overnight custody of the children and also as he could not have half of the vacation though he was having right of visitation, but he could not have custody for half of the vacation, the same needs to be compensated. Further, on all major festivals and Birthdays of the children and also in the ensuing Dasara and Winter Vacations, he need to have half of the children's vacation. His submission is that on Dasara and
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 Winter vacations, the father should have the full custody of the children.
20. Heard learned counsel the learned counsels on either side, perused the entire material on record. This is a case where, before all these proceedings were initiated, the parties were staying at Mumbai and mother came to Bengaluru along with kids and she filed M.C. petition seeking divorce. The father had also instituted G&WC petition in Bombay. Later, on transfer petition filed by both parties and the orders passed by the Honb'le Apex Court, both the matters are landed up in Family Court at Bengaluru. In that, the present impugned order is passed, basing on the application filed by the father seeking visitation rights and also interim custody of the minor children who are aged 9 and 7 years respectively.
21. This Court, in the process of balancing the interest of both the parties and also considering the welfare of the minors which is paramount, had interacted with the children, father and mother and time to time several
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 orders are passed. In the preceding paragraphs, how the visitation went on, the mother had put forth her case and father had put forth his case. According to the father, the visitation went on very well except on few occasions because of tutoring of the mother. According to mother, it was never good and children were not comfortable because the manner in which the father was taking care of the children during that brief period, they were constantly ill and she had to take them to the Hospital.
22. The crux of the arguments of the learned counsel for the petitioner and the affidavits and photographs that are filed by the wife she is making allegations against the father that he has all bad vices and about his adulteress life, in support of which several documents were also filed.
Basing on that, initially, this Court had passed an order which later came to be modified which are extracted in the preceding paragraphs. As far as the allegations that are leveled against father are concerned, in the considered opinion of this Court, this is not the Forum where this
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 Court can go into those disputed questions of fact. It has to be dealt with by the appropriate Court at appropriate time.
23. Now this Court is on an application filed by father for grant of visitation rights to the father. The manner in which visitation went on and interaction of this Court with the children and time to time orders passed by this Court, this court has observed that granting of visitation rights to the father is not detrimental to the interest of the children.
It is very unfortunate that both wife and husband are fighting this battle and both want to settle their scores.
Father on the last occasion when the matter came up, he said the mother wanted divorce and he is ready to give divorce and whatever terms of compromise or whatever the terms of settlement, he is ready and willing to settle it.
24. It is submitted by the learned counsel for the mother that the mother did not want any kind of settlement and she want to fight it out before the family Court on the merits. Because of the dispute between the parties, it
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 appears that the wife is emotionally affected and with all this, she is of the view that children being with the father is not in their interest. Considering the dispute between the parties, from the point of view and perspective of mother, this Court can understand her state of mind. But, this court while exercising "parens-patriea" jurisdiction, the Court has to look at the larger issue that is the welfare of the child. The children should not be between these battles and whatever the differences they have, they should settle the same as per the remedies available to them within the four corners of law. As far as kids are concerned, they have a basic human right and the basic necessity to have love and affection of both the parents.
The children's growth on all physical, mental, emotional aspects have to be considered by the Court. Their valuable childhood shall not be ruined. They should not be left with bad experiences of childhood and they should never feel that they are deprived of their childhood. The kind of visitation rights which are exercised till now by the father, as rightly put forth by the counsel for the father,
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024 the children are staying completely with the mother. She would definitely have her story and generally as these issues are discussed in the house, it would also have impact on the children. This Court had granted visitation rights and the manner in which it went on, in the considered opinion of this Court, the father is entitled to overnight custody but that should be exercised in Bengaluru till further orders that are to be passed by the Family Court.
25. Considering all these aspects, the order passed by the Family Court at Bengaluru is modified as below:
(i) The father can exercise overnight custody of the children on every second and fourth Sunday only in Bengaluru. He shall pick up the children on Saturday evening at 7 O' Clock and drop them back at 7 O' Clock on Sunday evening.
(ii) When it comes to vacations, i.e., Summer, Dasara and Winter vacations, both mother and father shall have equal custody of the children.
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024
(iii) The father is entitled to have access to the children through Video Conference for 30 minutes on Saturdays and Sundays at 4.00 p.m.
(iv) The father is entitled to have visitation rights of the children from 5.00 p.m. to 7.00 p.m. on major festivals like Diwali, Rakhi, Holi and Dasara and Birthdays of both the children.
(v) The father shall not force or create any situation which would cause embarrassment to both the children during the visitation.
(vi) While exercising custody, the father shall inform the mother the whereabouts of the children and in those days, the children are entitled to speak to their mother thrice a day through audio or video calls.
(vii) The father shall handover Transfer Certificates and other school records of the children pertaining to the schools in Bombay.
(viii) The father shall have access to the progress of the children in the school. Ultimately, as the children are in the custody of the mother, she is the only person who will be coordinating with the school authorities.
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NC: 2024:KHC:25856 WP No. 9885 of 2024 C/W WP No. 11842 of 2024
(ix) The father can exercise the first half of vacation.
(x) While exercising the custody of the children, grandmother shall accompany the father.
(xi) The Court below shall not grant unnecessary adjournments at the instance of either of the parties in G& WC and M.C. petitions and shall dispose of the matter as expeditiously as possible.
With the above observations both the writ petitions stands disposed of.
All IA's in this writ petition shall standing closed.
SD/-
JUDGE MPK CT:bms List No.: 1 Sl No.: 13