Himachal Pradesh High Court
Rohit Kalia vs Smt. Sangeeta Kalia on 20 May, 2024
Bench: M.S. Ramachandra Rao, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
FAO(FC) No. 8 of 2023 alongwith
FAO(FC) No.17 of 2023
.
Decided on: 20th May, 2024
FAO(FC) No. 8 of 2023
Rohit Kalia ....Appellant.
Versus
Smt. Sangeeta Kalia ....Respondent.
FAO(FC) No. 17 of 2023
Smt. Sangeeta Sharma ....Appellant.
Versus
Sh. Rohit Kalia ....Respondent.
________________________________________________________
Coram
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge
Whether approved for reporting? 1
FAO(FC) No. 8 of 2023
For the Appellant: Mr. J.L Bhardwaj, Senior Advocate with
Ms. Dhanwanti, Advocate.
For the respondent: Mr. Y.P. Sood, Advocate.
FAO(FC) No. 17 of 2023
For the Appellant: Mr. Y.P. Sood, Advocate.
For the respondent: Mr. J.L Bhardwaj, Senior Advocate with
Ms. Dhanwanti, Advocate.
_______________________________________________________
M.S. Ramachandra Rao, Chief Justice (oral)
Both these Appeals arise out of the order dt.05.12.2022 passed by 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 31/05/2024 20:33:13 :::CIS 2the Additional Principal Judge (I) Family Court, Una, District Una, Himachal Pradesh.
2) The parties were previously married and they have a child who is .
currently aged 9½ years.
3) Proceedings ensued between the parties under the Protection of Woman from Domestic Violence Act, 2005, under the Hindu Marriage Act, and also the Guardian and Wards Act, 1890.
4) One such proceeding was decided by this Court on 24.05.2021 in Cr.M.P no.1183 of 2018 etc. in Cr.MMO No. 191 of 2016.
5) In the said order, a learned Single Judge of this Court directed as under:
"(i) Rohit Kalia (father of minor child, noncustodial parent) shall have visiting rights to meet minor child at Municipal Park, Una or any other mutually agreed place on every second and fourth Saturday at 2:30 P.M. and second and fourth Sunday at 11:00 A.M. for a duration of 2½ hours, every month.
(ii) Rohit Kalia (father of child) shall also have overnight weekend custodial visitation right w.e.f. 2:00 P.M. on fourth Saturday till 4:00 P.M. of fourth Sunday of every alternative month, i.e. once in two months. Frequency of weekend custodial/overnight visitation right may be rescheduled in future by Family Court/District Court, depending upon prevailing circumstances including age of the child.
(iii) Rohit Kalia and his parents, jointly or singly, shall have right to exercise the right of visitation in aforesaid terms and out of total duration of 2½ hours they shall have exclusive visitation right for one ::: Downloaded on - 31/05/2024 20:33:13 :::CIS 3 hour in absence of and to the exclusion of mother as well as her parents and all other relatives, during each weekend visitation, but, for entire overnight weekend visitation.
(iv) Custody of child shall be handed over by mother Sangita Sharma .
or her parents to father Rohit Kalia on the date and time fixed aforesaid in presence of Coordinator of Mediation Center or Para Legal Volunteer, District Court Una, at Municipal Park, Una or any other mutually acceptable place duly notified to the Coordinator/Para Legal Volunteer well in advance at least 2 days before.
(v) On expiry of time of visitation period, father Rohit Kalia shall ensure safe handing over of custody of child to his mother or her parents, whosoever brings the child to the appointed location in the same manner.
(vi) Mother of child (custodial parent) shall not conceal the whereabouts of the child from father. Similarly father during overnight visitation period shall not conceal whereabouts of the place where child would be taken. Child shall be made available for telephonic conversation by the parent in custody to other parent.
(vii) On change of place of residence, school, telephone number, on which communication of non-custodial parent with the child is being made, mother of the child shall notify the same to the father of the child telephonically/ through message within 24 hours and in writing within 72 hours of the change.
(viii) Father is also permitted to participate in Parents Teachers meetings and mother of the child shall notify the date thereof immediately after receiving information from the school in this regard, so as to enable father to attend the Meeting, if possible to him.
(ix) Father shall be permitted to have telephonic communication with the child at least on every Tuesday, Friday and Sunday between 8:00 P.M. to 9:00 P.M. or any other time mutually agreed between the ::: Downloaded on - 31/05/2024 20:33:13 :::CIS 4 parents, except the Sundays on which right of visitation is exercised physically. In case child desires to have communication daily, then every day he shall be permitted to have such communication with his father at least for 3 to 5 minutes.
.
(x) In case during period of lockdown, curfew or other similar kind of restrictions imposed by the Government on account of prevailing Covid-19 pandemic or otherwise for any other reason, exercise of visitation rights is not possible physically then on the appointed days i.e. Second and Fourth Saturdays and Sundays, father shall have right to have telephonic communication for a longer period not less than 20 minutes in lieu of physical/overnight weekend visitation right. This communication shall be in addition to the routine telephonic communication.
(xi) Parents, though separated, but have to communicate with each other for welfare and development of balanced personality of child and, therefore, Contempt Petition COPC No. 81 of 2019 is also closed to maintain and continue peaceful and harmonious working arrangement between them, without adjudicating it on merits.
(xii) In case exercise of visitation right is to be suspended or cancelled on the appointed day, then party seeking such cancellation/suspension shall inform/notify other party about it at least 24 hours before it with reason for doing so and in case such suspension or cancellation is at the behest of mother then such visitation right shall be substituted for any subsequent Saturday and Sunday. Any visitation, cancelled by non- custodial father, shall be forfeited, unless parties agree to substitute such visitation. For emergent reason surfacing within 24 hours before time of visitation right, condition of informing before 24 hours shall not apply.
(xiii) Wife (mother of the child) is directed to handover the original Aadhar Card, date of birth certificate and other relevant documents like bank passbook etc. to father of the child on a date(s) fixed with ::: Downloaded on - 31/05/2024 20:33:13 :::CIS 5 consultation of concerned authority, enabling father to take necessary steps for correction of name of child by updating it in Aadhar Card, and also to hand over the custody of child to husband (father of child) on date fixed for it, duly communicated to the mother at least two days in .
advance, and if necessary on subsequent dates also, enabling the father to take necessary steps for reflecting full name of child in Aadhar Card as agreed and in terms of order passed by this Court. Original relevant documents and child shall be handed over by mother to the father and vice versa also in presence of Coordinator of Mediation Center or Para Legal Volunteer in District Courts Una, like earlier arrangement made at the time of handing over the child during exercise of visitation right. For such arrangement parties are directed to notify the date(s) to Coordinator of Mediation Center/Learned District Judge well in advance at least 2 days before.
(xiv) Concerned competent authority/Incharge of Aadhar Sampark Kendra (UIDAI) is directed to carry out necessary correction in the name of child in Aadhar Card for reflecting it as 'Yuvan Kalia alias Aadvik Sharma', as agreed by the parents of child in settlement arrived at before the Court, which has also been accepted and ordered by the Court. In case of any difficulty, parties, i.e. father and mother, shall be at liberty to approach the Court again in this regard.
(xv) As agreed, in terms of settlement, for dissolution of marriage of Rohit Kalia and Sangita Sharma, petition filed by the wife, bearing HMA No. 166 of 2017, pending in the Court of District Judge, Una, Himachal Pradesh, shall be considered a petition for dissolution of marriage with mutual consent and an appropriate decree is to be passed accordingly. Jurisdiction to pass such decree is with District Judge, Una. Therefore, record of HMA No. 166 of 2017 is ordered to be sent back to the said Court for passing appropriate decree on the basis of mutual consent for dissolution of marriage, on the date fixed for ::: Downloaded on - 31/05/2024 20:33:13 :::CIS 6 presence of parties before learned District Judge, Una, as the parties have already agreed for that.
(xvi) Parties are directed to appear in the Court of learned District Judge, Una, either personally or through counsel, on 30th June, 2021, by .
putting physical or virtual appearance, as possible and permissible on account of Pandemic Covid-19, for passing final judgment and decree for dissolution of marriage on the basis of mutual consent.
(xvii) Further, no fresh notice shall be issued by the learned District Judge for presence of parties on failure to appear by either party, but the petition shall be taken up and disposed of by the learned District Judge, by passing appropriate order and decree for dissolution of marriage on the basis of consent expressed by the parties before learned Mediator as well as in their statements recorded on oath, in the Court. Certified copies of statements as well as terms of settlement have already been produced by the wife before learned District Judge, which are lying in the record of HMA No. 166 of 2017.
(xviii) For violation of aforesaid directions, besides facing proceedings for Contempt of Court, party in default may also lose respective right over the custody or visitation right to the child, as the case may be.
(xix). Remaining conditions of terms of settlement shall remain as already agreed.
(xx) For any practical difficulty in complying with the aforesaid directions parties are at liberty to approach the Family Court/District Court, as the case may be."
6) Of these terms, for the present purposes, what are relevant are clauses (i), (ii) and (ix). The same are as under:-
"(i) Rohit Kalia (father of minor child, noncustodial parent) shall have visiting rights to meet minor child at Municipal Park, Una or any other mutually agreed place on every second and fourth Saturday at 2:30 ::: Downloaded on - 31/05/2024 20:33:13 :::CIS 7 P.M. and second and fourth Sunday at 11:00 A.M. for a duration of 2½ hours, every month.
(ii) Rohit Kalia (father of child) shall also have overnight weekend custodial visitation right w.e.f. 2:00 P.M. on fourth Saturday till 4:00 .
P.M. of fourth Sunday of every alternative month, i.e. once in two months. Frequency of weekend custodial/overnight visitation right may be rescheduled in future by Family Court/District Court, depending upon prevailing circumstances including age of the child.
(ix) Father shall be permitted to have telephonic communication with the child at least on every Tuesday, Friday and Sunday between 8:00 P.M. to 9:00 P.M. or any other time mutually agreed between the parents, except the Sundays on which right of visitation is exercised physically. In case child desires to have communication daily, then every day he shall be permitted to have such communication with his father at least for 3 to 5 minutes."
7) The wife Sangeeta Sharma moved an application u/s12 of the Guardians and Wards Act,1890 for variation/modification of the said order passed by this Court on 24.5.2021 taking advantage of liberty granted by this Court in the said to do so if there is any practical difficulty in complying with the said directions.
8) She wanted modification of condition (ii), which dealt with overnight weekend custodial visitation and also the duration of the telephonic conversation between the husband and the child.
9) The Additional Principal Judge (I), Family Court, Una, refused to interfere with the provision for overnight weekend custodial visitation, but ::: Downloaded on - 31/05/2024 20:33:13 :::CIS 8 reduced (a) the visitation right of the father on the fourth Saturday of a month to a period of one year from 3.00 p.m. to 4.00 p.m., i.e for one hour only though it had been fixed for 2 hrs 30 minutes in clause (i) of the order .
dt.24.05.2021; and (b) the extent the phone conversation time from One hour to 20 minutes.
10) FAO no. 17 of 2023 is filed by the wife to the extent the Court below had refused to end the overnight custodial right; and FAO(FC) no.8 of 2023 was filed by the husband to the extent of reductions/modifications made by the Family Court.
11) The reason assigned by the wife for reducing the mobile conversation time is that it would affect the brain of the child who was then six years old if he speaks for one hour to the father.
There cannot be any practical difficulty in complying with the direction given by this Court in regard to the period of telephonic conversation.
Since, admittedly the wife is in possession of a Cell phone with a SIM card and the child in her custody, she cannot use the plea of telephone conversation with the father affecting the brain of the child as a ground to reduce the duration of the phone conversation, because the High Court had not thought that relevant when it fixed the said period.
We also fail to understand how a conversation with a parent would affect ::: Downloaded on - 31/05/2024 20:33:13 :::CIS 9 the brain of the child merely because it is through a mobile phone.
12) Coming to the plea of the wife about curtailing the overnight weekend custodial rights is concerned, the High Court had kept in mind the .
need of the child to have parental contact with the non-custodial parent, who in this case is the father, when it gave the direction to that end.
13) The Court is exercising the Parens patriae jurisdiction in ensuring that the child's growth is not affected by deprivation of access to the non-
custodial parent and it is also it's duty to ensure that the custodial parent does not use a child as a pawn to gain advantage against that person in the instant litigation.
14) Counsel for the wife sought to contend that the child had not been willing to go and stay overnight with the father and therefore, the said condition should be dropped.
15) We do not agree with the said submission. It is duty of the mother of the child to prepare the child for the overnight weekend visitation and ensure that the child is comfortable to go and stay with the non-custodial parent. Obviously since litigation is still pending between the parties, the custodial parent instead of complying with the conditions imposed by this Court in its order dt.24.05.2021, seems to be manipulating the child and ensuring that he did not go and stay with the non-custodial parent for the ::: Downloaded on - 31/05/2024 20:33:13 :::CIS 10 duration fixed in the order passed by the High Court.
16) The child is almost 9 ½ years at this point of time and interaction with the non-custodial parent would undoubtedly help his development .
mentally.
17) Therefore, we modify the order passed by the Additional Principal Judge (I) Family Court Una and permit visitation rights to the father of the child on the 4th Saturday from 3.00 p.m. to 5.30 p.m. ( 2 and ½ hours) and we decline to modify the direction for overnight access on weekends. We also modify the order of the Court below and permit mobile conversation for a period of one hour instead of 20 minutes.
18) Therefore, FAO (FC) no. 17 of 2023 is dismissed and FAO (FC) no.
8 of 2023 is allowed in the aforesaid terms.
19) Pending applications, if any, also stand disposed of.
( M.S. Ramachandra Rao )
Chief Justice
20th May, 2024 (Jyotsna Rewal Dua)
(priti) Judge
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