Delhi District Court
Parvinder Kaur vs S. Sanmeet Singh. on 31 May, 2023
IN THE COURT OF MS. SHIVALI SHARMA,
ADDITIONAL SESSIONS JUDGE-03: WEST DISTRICT,
THC, DELHI.
Criminal Appeal No. 240-2022
Parvinder Kaur Vs S. Sanmeet Singh.
P.S. Rajouri Garden
u/s 29 DV Act
Parvinder Kaur
D/o Sh.Bhupender Singh
R/o H. No. 4/232, Subhash Nagar,
New Delhi-110027. ........ Appellant
Versus
S. Sanmeet Singh
S/o S. Avtar Singh
R/o 14/39B, Tilak Nagar,
New Delhi-110018. ....... Respondents
Date of filing:22.09.2022
Date of arguments: 16.05.2023
Date of judgment: 31.05.2023
JUDGMENT
1. The present criminal appeal is filed under section 29 of Protection of Women from Domestic Violence Act (hereinafter called as DV Act) against the impugned order dated 22.08.2022 passed by the court of Ld. Metropolitan Magistrate, Mahila Court-04, West District whereby an application u/s 21 DV Act r/w Section 26 of DV Act seeking visitation rights qua the minor child namely Gunraj Singh filed by the Respondent herein, who is Respondent no.1 before Ld. Trial Court and father of the minor child was allowed granting visitation rights to Respondent no.1 for meeting the minor child out of the court on every Saturday CA No. 240-2022 Parvinder Kaur Vs S. Sanmeet Singh Pages 1 of 9 from 12 Noon to 04:00 PM in the presence of Revisionist herein i.e. mother of the minor child(complainant before Ld. Trial Court) with a direction to her to provide space to the Respondent and child to interact freely.
2. As is evident, Revisionist herein is the wife of the Respondent herein and she had filed a petition u/s 12 of DV Act before Ld. Trial court being MC no. 78-2018. For the sake of convenience, parties shall be referred to by their nomenclature before Ld. Trial Court.
BRIEF FACTS:
3. Complainant filed a petition under Section 12 of DV Act against her husband/Respondent herein (Respondent no.1 before Ld. Trial Court) and her in laws. Vide order dated 27.03.2018, the Respondents were directed to be summoned by Ld. Trial Court. All the respondents appeared before Ld. Trial Court on 22.05.2018 and directions were issued for filing of income affidavits vide order dated 20.08.2018. The interim application seeking maintenance filed by the complainant along with the DV Act petition is still pending disposal. On 23.10.2020, husband/Respondent no.1 voluntarily made a statement before Ld. Trial Court that he is willing to make a payment of Rs. 5000/- per month for the maintenance of his son who is in custody of the complainant till the disposal of interim maintenance application.
4. In the meanwhile, an application u/s 21 r/w 26 DV Act was filed on behalf of Respondent no.1 seeking visitation rights of the minor child. The said application was heard and disposed off vide impugned order dated 22.08.2022.
CA No. 240-2022 Parvinder Kaur Vs S. Sanmeet Singh Pages 2 of 9
5. The admitted facts of the case are that the marriage was solemnized between the complainant and Respondent no.1 on 24.04.2011 and a son was born out of the wedlock on 13.04.2014. The parties are residing separately since 31.12.2016 i.e. when the child was merely two and half years old. Since that day, the child is in custody of complainant/mother. Various allegations of domestic violence have been levied by the complainant against Respondent no.1 and his family members in the present DV Act petition which are refuted by the respondents. However, the fact remains that till date, neither of the party has filed any divorce petition against the other nor Respondent no.1 has filed any petition seeking custody of the minor child. GROUNDS OF APPEAL:
6. The impugned order has been challenged on the following grounds:
(a) That the impugned order is against the law and material available on record and is based on conjectures and surmises.
(b) That the Ld. Trial Court has failed to appreciate that since the issue of custody of children is a sensitive issue, it cannot be dealt with in a mechanical manner and the welfare of the child should be the paramount consideration while deciding any application regarding the custody or visitation rights of minor children.
(c) That the Ld. Trial Court had not even interacted with the minor child before passing the impugned order.
(d) That the Ld. Trial Court had failed to appreciate that as per the DV Act petition, the complainant was driven out of her matrimonial home on 31.12.2016 along with her minor child who CA No. 240-2022 Parvinder Kaur Vs S. Sanmeet Singh Pages 3 of 9 was just 2 years and 8 months old at that time due to the drinking habit of the respondent no.1 and physical violence.
(e) That the Ld. Trial Court had failed to appreciate that since 31.12.2016 i.e. almost for 6 years, the minor child has been living with his mother and maternal grandparents and had never visited or met the respondents. Even Respondent no.1 had never made any effort to meet the minor child nor moved any petition under Guardianship Act for the purpose.
(f) That the Ld. Trial Court failed to appreciate that the Respondent no.1 had not contributed towards the maintenance of the minor child and even after voluntarily offering to pay an ad interim maintenance of Rs. 5000/- per month, he had failed to pay the same.
(g) That the Ld. Trial Court had failed to appreciate that the application for visitation rights was nothing but a method to further victimise the complainant.
(h) That the Ld. Trial Court had failed to make any provision for to and fro expenses of the minor child for the purposes of compliance of the impugned order or to consider that the minor child is a school going child who does not have Saturdays off and it is not practical for the child to take off on every saturday to comply with the directions issued in the impugned order.
(i) That the Ld. Trial Court had failed to appreciate that the Respondent no. 1 is more like a stranger to the minor child as the child had never met him since 31.12.2016 and giving the directions as issued in the impugned order are not in the direction of the welfare of the minor child.
CA No. 240-2022 Parvinder Kaur Vs S. Sanmeet Singh Pages 4 of 9
(j) That the Ld. Trial Court had failed to appreciate that the opening line of application moved by Respondent no.1 was that he is voluntarily paying ad interim maintenance of Rs. 5000/- per month towards the child which is not a correct statement as till date, payment has been made only for 5 months.
7. Ld. Counsel for the Appellant/complainant has argued in line with the grounds of appeal. It is submitted that the impugned order is not passed considering the welfare of the child. Ld. Trial Court had never met the minor child before passing the impugned order. It is submitted that the impugned order is likely to adversely affect the mental condition of the child and the child may face post traumatic stress disorder. Even otherwise, Section 21 of DV Act only provides for orders of temporary custody or visitation rights in respect of the children while the real remedy lies under the Guardianship Act which has not been explored by the Respondent no.1 till date. Hence, it is prayed that the impugned order be set aside.
ARGUMENTS OF RESPONDENT:
8. Per contra, the present appeal has been vehemently opposed on behalf of the Respondent/Husband. It is submitted that the impugned order is a well reasoned order based on the facts of the case and does not deserve any interference by this Court. There is no infirmity or illegality in the impugned order. The complainant has been adamant in not letting a father meet the minor child and the present appeal has been filed merely to pressurize the respondent. Even otherwise, the payment of maintenance and visitation rights are two separate aspects and cannot be mixed up.
The Respondent/father cannot be denied visitation rights merely CA No. 240-2022 Parvinder Kaur Vs S. Sanmeet Singh Pages 5 of 9 because he has defaulted in making payment of the maintenance. Ld. Trial Court has rightly appreciated that welfare of the minor child requires that he gets affection of both the parents.
9. Considering the overall facts of the case, the impugned order has been passed in the right perspective and does not deserve any interference. Hence, dismissal of the revision petition is sought. FINDINGS:
10. I have heard the submissions made and carefully perused the record. I have also carefully perused the impugned order and the material available on the Trial Court record.
11. The marriage between the parties, the birth of the minor child and separation of the parties is not a matter in dispute. Admittedly, the parties have been residing separately since 31.12.2016 i.e. when the minor child was merely 2 years and 8 months old. It is also an admitted fact that till date, the respondent had not filed any petition under Guardianship Act seeking custody of the minor child or visitation rights.
12. It is again an admitted fact on record that on 23.10.2020, the respondent had voluntarily offered to pay Rs. 5000/- per month for maintenance of the minor child till disposal of the interim maintenance application which is still pending. During the course of arguments, it is also admitted by the respondent that till date, he had made payment of Rs. 5000/- to the complainant only for the months of November 2021, December 2021, January 2022, March 2022 and April 2022. It is also admitted by the complainant that only 5 payments of Rs. 5000/- each were paid by Respondent till date.
CA No. 240-2022 Parvinder Kaur Vs S. Sanmeet Singh Pages 6 of 9
13. During the course of arguments, the Respondent was also asked as to why he is not making the payments which he has voluntarily offered to pay on which he stated that since he was not being given visitation rights, he has not been making the payments.
14. Let us now consider the impugned order in the light of these facts. It is a settled law that while deciding an application for visitation rights or custody of the minor child, the welfare of the child is of prime concern. Rights of the parents concerning the child are secondary when compared to the welfare of the child. Perusal of the TCR shows that Trial Court had never met the minor child before passing the impugned order. Although, directions were issued for production of the child for interaction with the court on two occasions i.e. vide order dated 10.05.2022 and 18.07.2022, however, none of the ordersheet records the compliance of these directions or the meeting of the child with Ld. Trial Court. It is an admitted fact that the child has not met his father/Respondent since the age of about 2.5 years and the separation has been for more than 6 years as on date. In these circumstances, directing the child to meet Respondent without interacting with the child is not the right approach.
15. Even the respondent cannot claim visitation rights with the child as a matter of right while ignoring his duties towards the maintenance of the child. It is a settled law that every right comes with a corresponding obligation and appreciation of rights of a party while ignoring his obligations is not the right approach of dealing with the things. Although, it is correct that visitation rights and payment of maintenance are two separate issues and CA No. 240-2022 Parvinder Kaur Vs S. Sanmeet Singh Pages 7 of 9 should generally not be mixed up but the present case is different as we are not talking about the maintenance of the wife but the maintenance of the minor child whose visitation rights are being sought by the Respondent and for whom he had voluntarily offered to pay ad interim maintenance at the rate of Rs. 5000/- per month.
16. In these facts, the non-payment of maintenance amount by the Respondent and his unwillingness to support the minor child financially or share the burden of his schooling and maintenance becomes an important consideration while dealing with an application whereby he is asserting his rights to meet the child.
17. It is also a fact that the impugned order does not deal with the transportation expenses of the minor child for compliance of the directions issued nor it talks about the convenience of the day and time fixed for meeting of the respondent with the child. The Revisionist has raised an issue in the present revision petition to the effect that the minor child has his school on Saturdays and he cannot take holiday on every Saturday for meeting the respondent. This concern has not been addressed by Ld. Trial Court in the impugned order dated 22.08.2022.
18. In view of the reasons given above, I do not find the impugned order to be a just and legal order passed after considering the overall facts and circumstances of the case.
19. Accordingly, the impugned order dated 22.08.2022 is set aside and the application filed by the respondent no.1 u/s 21 r/w 26 of DV Act seeking visitation rights qua his minor child stands dismissed.
CA No. 240-2022 Parvinder Kaur Vs S. Sanmeet Singh Pages 8 of 9
20.However, it is clarified that nothing expressed herein shall bind the decision of Ld. Trial Court in case, subsequent application to this effect is filed by the respondent on some changed circumstances.
21. Ld. Trial Court is also requested to expedite the disposal of the interim maintenance application which is pending since 2018.
22. With these directions, the present appeal is allowed.
23. Parties to bear their own cost.
24. The Trial Court Record be sent back along with attested copy of this order.
25. The appeal file be consigned to Record Room after completion of necessary formalities.
Digitally
Announced in the open court signed by
SHIVALI
SHIVALI
today, i. e. 31st May, 2023 SHARMA
SHARMA
Date:
2023.05.31
15:32:34
+0530
(SHIVALI SHARMA)
ASJ-03/WEST/THC/DELHI/31.05.2023
CA No. 240-2022 Parvinder Kaur Vs S. Sanmeet Singh Pages 9 of 9