Delhi High Court
Shyam Sunder Trikha vs Sunita on 2 May, 1997
Equivalent citations: AIR1998DELHI153, 67(1997)DLT619, II(1997)DMC59, 1997(42)DRJ198, AIR 1998 DELHI 153, (1997) 42 DRJ 198, (1997) 67 DLT 619, (1997) 2 DMC 59, (1997) MATLR 351, (1998) 1 MARRILJ 450, (1998) 1 RECCIVR 115
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
(1) The petitioner is aggrieved by an order dated 14.1.1997, passed by the learned Guardian Judge, on the application under Section 12 of the Guardian and Wards Act, for interim custody of the child. The learned Guardian Judge allowed custody of the child to the petitioner on every 2nd and 4th Sunday of the month between 9.00 AM. to 6.00 PM.
(2) The petitioner's grievance emanates from the fact that in terms of the mutual arrangement arrived at between the parties at the time of grant of divorce by mutual consent, the petitioner/father was to have custody of the child on the morning of 2nd and 4th Saturday of each month till 8.00 PM., on the following Sundays. Apart from that, the petitioner was to have custody of the child for 10 days during summer vacation and 6 days during Dusherra and Ashtami and 5 days during winter vacation.
(3) Respondent has filed reply to the revision petition and application for stay. An application, viz. Cm No.1572/97 has been moved by the respondent seeking cancellation of the visitation rights to the father and setting aside of the impugned order in this regard. The said application came up before the Court on 29.4.1997 after judgment had been reserved upon conclusion of arguments on 25.4.1997. The said application was taken on record.
(4) Let us notice the facts relevant for the present petition:
(I)Petitioner Shyam Sunder Trikha, who was previously working with the State Bank of India had taken voluntary retirement. He is now engaged in business of supply of stationery. He was married to the respondent Sunita Gupta, who is working in the District Courts at Tis Hazari, on 4.1.1985. The couple was blessed with a male child on 7.6.1988. The bliss in marriage was short-lived. They had major differences, compelling respondent Sunita to seek divorce under Section 13 of the Hindu Marriage Act in May 1991, on the ground of cruelty. The parties, thereafter, resolved to have the marriage dissolved on grounds of mutual consent. Accordingly, the petition under Section 13 of the Hindu Marriage Act was amended. Allegations were withdrawn against the respondent/husband and a decree for divorce by mutual consent was passed in February 1994. At the time of grant of divorce the parties had agreed to the following arrangement as regards the custody of the child Senam:
A)That the permanent custody of the child shall remain with the mother (respondent herein) till the time such issue is decided by a competent court of jurisdiction.
B)That the child will stay with the father on 2nd and 4th Saturdays of every month and the mother shall hand over the custody of the child to the father at the bus stop, Shastri Nagar, Delhi at 10 AM. and the father shall return the child on the following Sunday at the time same bus-stand at 8.00 pm. C)That the child shall remain with the father for 10 days during summer vacation including his birth-days which falls on 7th of June every year; six days during Dusherra and Ashtami: 5 days in winter vacation and on all festivals like Diwali, Holi and other family functions.
(II)It was also agreed that the question of permanent custody of the child shall be decided by Court of competent jurisdiction upon the child attaining the age of seven years.
(III)Even prior to the above arrangement being agreed to, the petitioner had sought permission and was permitted to take the child at Vaishno Devi from 5.6.1992 to 8.6.1992 and to Hoshiarpur in September 1992 and June 1993.
(IV)The respondent, in June 1995, filed a suit for permanent injunction seeking a restraint on the petitioner from meeting and taking the child. The Civil Judge dismissed the application of the respondent. However, a condition was imposed that the petitioner would not take the child out of the jurisdiction of this Court so as not to cause any disruption in the routine and studies of the child. The petitioner preferred an appeal before the Senior Civil Judge to modify the order of the Civil Judge to the extent that the petitioner could take the child outside Delhi, but with the permission of the Court. The case was then remanded back to the Civil Judge for disposal.
(V)The petitioner had filed an application for taking the child outside Delhi during summer vacations. Notice of the application had been issued. The petitioner's allegation is that with a view to pre-empt any order being passed, the respondent withdrew the suit.
(VI)The petitioner was, thus, in September 1996, constrained to file a petition for permanent custody of the child under Section 25 of the Guardians and Wards Act, 1890 and also moved an application for interim custody. The learned Guardian Judge allowed the petitioner custody of the child during --9/11/1996, 14.12.1996 and 28.12.1996, with the child staying the night with the petitioner and being returned on the following day.
(5) It is in this background that the petitioner assails the impugned order dated 14.1.1997, which permits the petitioner the custody of the child on 2nd and 4th Sunday of the month during day time only. The petitioner is required to return the child to the respondent at 6.00 PM., on the same day. The petitioner assails the impugned order as an improper exercise of jurisdiction in ignoring and not adhering to the arrangement of 18.2.1994. Learned counsel for the petitioner, Mr. Gulati, urged that the impugned order overlooks that there is no ground to disentitle the petitioner from interim custody of the child. There was no ground to depart from the arrangement agreed to on 18.2.1994, pending the decision on permanent custody of the child. The impugned order ignores the welfare of the child. The learned Guardian Judge has gone by a mere wish of the child not to stay with the petitioner-father because the latter drinks. The mere opinion or wish of the child should not have been of any consequence and deserved no weightage. The only consideration should have been the welfare of the child. This was especially so when the learned Guardian Judge himself observed that the child has stated that the petitioner father loves him a lot.
(6) As against this, learned counsel for the respondent, Mr.Guglani has urged that the learned Guardian Judge had spoken to the child and ascertained his wishes. The petitioner, it is urged, is addicted to drinking and, therefore, the child had expressed his unwillingness to stay with the petitioner overnight. It is alleged by the respondent/mother that despite harassment by the petitioner she has brought up the child with great care and pain and the academic performance of the child is brilliant. The petitioner is spoiling the child. The petitioner takes the occasion of meeting the child at the bus stop, unlawfully detains him, gives him money ranging from Rs. 20.00 to Rs. 50.00 and thus the child is getting into bad habits. He has started stealing money from respondent's purse and picking up from other places. He is becoming extravagant in his habits. It is alleged that the petitioner has shown to the child adult and horror movies, such as Bandit Queen; 100 Days; Goondaraj, etc. These have emotionally disturbed the child and affected his concentration. It is stated that the petitioner has a low character and had to seek voluntary retirement to avoid the charge of embezzlement by the State Bank of India. Petitioner is stated to be staying alone, without any family life and accustomed to gambling, drinking, etc. Learned counsel for the respondent, therefore, submitted that, in these circumstances, leave aside the petitioner having the custody of the child overnight, he should even be denied meeting rights. It is further stated on behalf of the respondent that the allegations in the petition under Section 13 of the Hindu Marriage Act for divorce were withdrawn only for the purpose of getting it converted into a petition seeking divorce by mutual consent, but that does not affect the truth of the allegations.
(7) The petitioner in his rejoinder has refuted these allegations as false and of no consequence. The petitioner states that he had not touched any liquor since July 1991. The petitioner claims to be paying regular maintenance for the child and has tendered the maintenance charges upto March 1997 in Court as the respondent had refused to receive the same. The petitioner specifically denies that he had taken the child to any of the adult or horror movies, as alleged, or otherwise. It is denied that there was any embezzlement case against the petitioner as, otherwise, he would not have been permitted to seek voluntary retirement. In any case, this event is prior to the marriage between the parties. Petitioner claims to be totally devoted and interested in the welfare of the child. Allegations of spoiling the child or harassing the petitioner and the child are denied. It is stated that if indeed the child is developing bad habits it is on account of respondent's lack of care. Respondent has the custody of the child who is not kept well attired and left to roam.
(8) At this stage notice may also be taken of another order dated 29.3.1997, passed by the learned Guardian Judge. By this order the learned Guardian Judge allowed the application of the petitioner to take the child out of Delhi to Chintpurni and Hoshiarpur from the evening of 31.3.1997 to 6.4.1997. The learned Guardian Judge considered his order dated 14.1.1997 as well as his meeting with the child, wherein the latter had expressed his unwillingness to stay overnight with the father due to alleged drinking habits. The learned Guardian Judge allowed the petitioner's application, requiring the petitioner to give an undertaking that he would not drink during the company of the child.
(9) In matters like the present one, wherein acrimonious litigation is going on, allegations and counter allegations are made by the parties. Notice need to be taken only of those allegations which directly affect the minor or have a bearing on his welfare. Accordingly, the allegations made by the respondent with regard to the petitioner's low character and the alleged inquiry against him, pursuant to which he sought voluntary retirement, need not be given any weight. One thing which clearly emerges from a consideration of the pleadings, is that the petitioner on several occasions since 1992, had the child with him for overnight stay and had even taken him out of station with the permission of the Court. No specific instance of ill-treatment of the child or the petitioner having created any embarrassment due to, his alleged drinking habits has been alleged hitherto before. Petitioner has categorically stated that he has not been drinking since 1991. The learned Guardian Judge in passing the impugned order appears to have been influenced by an expression of wish by the child. The question of "intelligent preference" and ascertaining the wishes of the child while granting visitation rights came up for consideration before this Court in Indira Khurana Vs. Prem Prakash (60 (1995) Dlt 663). The Court held that where the question of custody of child is concerned ascertaining of the wishes of the children, especially when they are not at an age to make intelligent preference is a relevant and germane consideration. However, omission to do so while considering visitation rights would not be fatal. The Court observed as under: "THE Guardian Judge while exercising his judicious discretion in granting visitation rights can certainly ascertain the wishes of the children by meeting them. In fact, it would be desirable to do so. However, omission to do so in case of visitation rights cannot be fatal especially when there is sufficient material on record available otherwise, supporting grant of visitation rights. This is so in the instant case. The memorandum of understanding had been entered into on the 6th day of December, 1993. The petitioner has not pointed out anything attributable to respondent after 6.12.1993, which would render grant of visitation rights to respondent injurious to the mental and physical health of the children. The petitioner in terms of memorandum was willing to share, the vacation and give visitation rights to the respondent. Moreover, the expression of wishes of the children is very often conditioned by the persuasion of the party in whose exclusive custody the children have been. The Court, therefore, while ascertaining the mind of the children, has to be conscious of the fact that what the children say could be the reflection of the views of the estranged spouse and induced by him/her."
(10) The case before me is somewhat on similar lines. The respondent has not been able to establish or show any conduct attributable to the petitioner, which would necessitate or warrant a change in the arrangement of 18.2.1994, so as to avoid any injury to the mental and physical health of the child. There is no evidence of ill-treatment of child. The allegations against the petitioner of cruelty stand withdrawn. The allegations of harassment are not substantiated at this stage. The learned Guardian Judge relied on a mere wish of a child, in which his unwillingness to spend the night with a father who drinks was expressed.
(11) At the request of learned counsel for the respondent the child was called in the Chambers and spoken to by me. It was clear that the child obviously loves both his parents and accepts that both of them love him a lot. He is extremely devoted to the mother, who is taking care of the child most of the time and was reluctant to say anything which might even remotely displease her. Having spoken to the child and also questioned him on the manner in which he had spent the time with his father, the allegation of the petitioner taking the child to adult movies does not appear to be credible. The Court can only reiterate that the Guardian Judge, while ascertaining-the mind of the child during a meeting has to be conscious and cautious of the fact that what the child is saying could be reflection of the views of the estranged spouse and as induced by him/her.
(12) The learned Guardian Judge appears to have been rather influenced by the disinclination and unwillingness of the child, expressed on account of the alleged drinking habit, to stay overnight with the father. The desirability and long-term benefit of the child in this growing age of 8 to 9 years of having the company of his father, appears to have not weighed with the Guardian Judge. It is necessary for the healthy development of the child that the link with the father is maintained and developed. The learned Guardian Judge seems to have adopted the latter approach in his subsequent order when he permitted the child to be taken to Chintpurni and Hoshiarpur from 31.3.1997 to 6.4.1997.
(13) In the instant case, therefore, there was no evidence or material before the learned Guardian judge which warranted denial of the overnight stay of the child with the petitioner or a variation in the arrangement that the parties had originally agreed. However, it appears to the Court that certain modifications in the said arrangement may be necessary so as to maintain continuity and avoid disruption in the studies of the child. The respondent, who is working in the District Courts at Tis Hazari has a holiday on the 2nd Saturday of the month and would, therefore, be in a better position to look after the child on the 2nd Saturday. Accordingly, the mutual agreement arrived at between the parties on dated 18.2.1994 in respect of custody of the child is maintained with the modification that the petitioner would have the custody of the child on the 1st and 3rd Saturday of each month at 10.00 AM. instead of 2nd and 4th Saturday of every month. The child would be returned to the respondent mother on the subsequent day, i.e. Sunday at 6.30 pm. It is expected that the petitioner father would also realise his responsibility towards the child and ensure that the child completes his homework and devotes time to studies when the petitioner has the custody of the child. This arrangement will continue till the decision on the application for permanent custody under Section 25 of the Guardian and Wards Act. It would, however, be open to either of the parties to seek a variation or modification in the above arrangement, in the event of any change of circumstances, which would affect the welfare of the minor.
(14) CR.346/97 and CM.1572/97 stand disposed of with the above directions.