Delhi High Court - Orders
Sh Abhay Kumar vs Smt Priya Prakash on 24 May, 2024
$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 2577/2024
SH ABHAY KUMAR ..... Petitioner
Through: Mr. Hitendra Nath, Adv.
versus
SMT PRIYA PRAKASH ..... Respondent
Through: Ms. Mahak Rathee, Adv.
CORAM:
HON'BLE MS. JUSTICE SHALINDER KAUR
ORDER
% 24.05.2024 CAV 235/2024
1. Learned counsel for the caveator/respondent has put in appearance.
2. The caveat stands discharged.
CM(M) 2577/2024, CM APPL. 29241/2024--for custody of minor daughter
3. The present petition has been filed under Article 227 of the Constitution of India read with Section 7, 8, 9, 10, 12 and 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as "GWA") to impugn the order dated 09.05.2024 passed by the learned Judge, Family Court-02, South District, Saket Courts, Delhi (hereinafter referred to as "Family Court") in GP No. 79/2023 titled as "Abhay Kumar vs. Priya Prakash," whereby an application filed by the petitioner herein under Section 12 of GWA read with Section 151 of CPC seeking interim custody CM(M) 2577/2024 Page 1 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/05/2024 at 22:19:07 of his minor daughter during the summer vacations was dismissed. The petitioner has sought the following prayers in the present petition: -
"a) Modify the order dated 09.05.2024 of Ld. Family Court Saket in GP 79/2023 to the extent it declined the interim custody of minor daughter Ananya Gupta during summer vacations.
b) Grant Interim Custody of the Minor daughter Ananya Gupta to the petitioner-father during her school summer vacations.
c) Grant interim overnight visitation and contact rights of petitioner father with both children."
4. Brief facts being, that the petitioner and the respondent got married on 24.02.2018. The couple has two children born out of the wedlock, a daughter aged 3.6 years and a son aged 1.5 years. The petitioner herein is an officer of Indian Railway Service of Mechanical Engineering (IRSME) and the respondent herein is an officer in Reserve Bank of India (RBI). Currently, the parties are amidst an ongoing matrimonial dispute and have been living separately since July 2023. Further, the petitioner resides in Delhi, while the respondent recently transferred from Delhi to Patna and relocated there with both children.
5. On 08.11.2023, the petitioner moved a guardianship petition before the learned Judge, Family Court bearing no. GP 79/2023 seeking custody of his minor children. In the meanwhile, the petitioner also filed an application under Section 9 of the Hindu Marriage Act, 1955 bearing no. 186/2024 for restitution of conjugal rights before the learned Judge, Patiala House Courts, New Delhi.
6. Subsequently, on 24.02.2024, the petitioner filed two interim applications under Section 12 of GWA read with Section 151 of CPC. The first application sought directions to the respondent for cooperation and coordination regarding the school admission of the daughter. The second CM(M) 2577/2024 Page 2 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/05/2024 at 22:19:07 application sought interim custody of the minor daughter and visitation rights for the petitioner with respect to his minor son.
7. Vide order dated 10.04.2024, the Family Court dismissed the aforesaid applications and observed that considering the age of the daughter, it is not appropriate to grant interim custody to the petitioner. However, the Family Court allowed the petitioner to visit the children in Patna on any weekend with prior intimation and as per the convenience of the respondent. Thereafter, the petitioner challenged the aforesaid order before this Court through a CM(M) petition bearing no.2387/2024 which is listed for hearing on 23.08.2024.
8. It is the case of the petitioner that it is well settled law that in custody litigation, if one parent is granted custody, the other parent must be given sufficient visitation rights. Additionally, in cases where the parents reside in distant cities, the non-custodial parent should be granted custody of the minor children during their school vacations. On 12.04.2024, the petitioner filed an application under Section 12 of GWA read with Section 151 of CPC for interim custody of the minor daughter during the summer vacations.
9. Vide order dated 09.05.2023, the Family Court dismissed the aforesaid application thereby declining the petitioner interim custody of the minor daughter during the summer vacations and granted limited visitation rights. Aggrieved by this impugned order, the petitioner has preferred the present petition.
10. Mr. Hitendra Nath, the learned counsel for the petitioner submits that the petitioner and respondent are working individuals and both rely on their respective parents for childcare. Under these circumstances, the view of the CM(M) 2577/2024 Page 3 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/05/2024 at 22:19:08 Family Court that only the mother can provide care for a child of 3.5 years and that a child cannot be detached from the mother but can be detached from the father is considered detrimental to the welfare and interest of the minor child.
11. Learned counsel submits that as per the transfer policy of the RBI, officers posted in the department of supervision are usually assigned a tenure of seven years in a city. However, the respondent with malicious intent, has managed to get herself transferred even before completing five years.
12. Learned counsel further submits that since July, 2023 the minor daughter has been under the sole custody of the respondent because the Family Court failed to provide any interim custody or visitation rights to the petitioner. Through such acts of parental alienation, the respondent has inflicted cruelty on her own children.
13. Learned counsel also submits that during the visitations, the daughter is completely at ease and happy in the petitioner's company, even though she has not seen him for approximately five months. Further, she expresses a strong desire to return to her paternal grandparents during each visitation. To support these submissions, the petitioner has relied upon the photographs placed on record.
14. Learned counsel for the petitioner submits that the welfare and best interest of the daughter lie with the petitioner and paternal grandparents, who reside in Chanakyapuri, New Delhi. It is submitted that they are ready to take care of the daughter and live in a residential complex fully equipped with several recreational facilities for children. Moreso, the petitioner is prepared to take 15 days off from his job to be with the child.
CM(M) 2577/2024 Page 4 of 7This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/05/2024 at 22:19:08
15. To support his arguments, the learned counsel for the petitioner relied upon the following judgments:-
i. Yashita Sahu vs State of Rajasthan, (2020) 3 SCC 67. ii. Prabhat Singh vs Shweta Yadav in Civil Appeal No. 831 of 2021.
iii. Aditi Bakht vs. Abhishek Ahuja in MAT.APP. (FC) 162/2022. iv. Aditi Bakht vs. Abhishek Ahuja in SLP (C) No. 19016/2022. v. Smriti Madan Kansagra vs. Perry Kansagra in MAT.APP.
(FC) 67/2016.
vi. Amey Dilip Sardessai vs. Mrs. Gayatri Amey Sardessai, 2022 SCC OnLine Bom 243.
16. The submissions of the petitioner were refuted by learned counsel for the respondent stating that there is no infirmity in the impugned order passed by learned Trial Court. Learned counsel submits that the job of the respondent is transferable and as part of a routine transfer, she has been relocated to Patna after being stationed in Delhi for five years.
17. The Learned counsel submits that the parties have been living separately since last year and prior to that they were residing in a rented accommodation. Further, it is submitted that the petitioner's interaction with the minor child has been negligent, resulting in the child being unfamiliar with her father. Therefore, granting temporary custody of the minor girl during the summer vacation would be distressing for her especially considering that the last memories of her father date back to when she was barely 2 ½ years old.
18. Learned counsel also submits that the minor son is 1 ½ years old and there is a strong bond between the two children. Therefore, allowing the CM(M) 2577/2024 Page 5 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/05/2024 at 22:19:08 daughter to be with her father during the summer vacations would result in the son missing his sister, which could have a significant psychological impact on him.
19. Learned counsel further submits that the respondent has made special arrangements for her daughter to join a summer camp in Patna during the vacations, which will provide the child with opportunities to explore extracurricular activities.
20. Submissions heard. Impugned order passed by the Family Court and the record perused.
21. A review of the record shows that the written submissions on behalf of the respondent are not on record.
22. It is not disputed that for the better development and growth of the child, it is fundamental that the child should receive love, affection, protection and upbringing from both parents. However, in cases of matrimonial disputes, children undoubtedly suffer when the custody is with one parent.
23. In the present case, the mother has been transferred from Delhi to Patna and currently, resides there with her parents along with two minor children. Necessarily, as the respondent is the custodian parent, the children will have to follow wherever the mother has been posted. Furthermore, it is not disputed that for the past one year, the minor child has not stayed with her father.
24. Therefore, keeping in view the tender age of the girl child, who is stated to be only 3½ years old, it will not be in her best interest to hand over the custody to the petitioner during the summer vacations. It is CM(M) 2577/2024 Page 6 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/05/2024 at 22:19:08 pertinent to note that since the child has been primarily in the custody of the respondent, she is familiar with her mother and brother.
25. Thus, the Family Court has correctly scheduled the visitation meetings for the petitioner with his daughter, as follow: -
"The relief sought by the petitioner for the interim custody of the daughter during summer vacation is declined. However, the petitioner is granted visitation to meet the daughter Ms Ananya Gupta on every weekend in Patna. Petitioner can go to Patna with prior intimation to the respondent. He can pick the child from the respondent's house on any Saturday or Sunday in the morning at around 11.00 AM subject to the routine of the child, spend the day with her and can drop her back to the respondent's house on the same day latest by 7.00 PM. The parents of the petitioner are also permitted to accompany the petitioner to Patna to meet the child but only once a month."
26. Consequently, the present petition along with any pending application is dismissed.
SHALINDER KAUR, J.
MAY 24, 2024 SU CM(M) 2577/2024 Page 7 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/05/2024 at 22:19:08