Madras High Court
S.Nishath vs S.Shajila Beevi Alias Shasila on 14 December, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/12/2012 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)(MD)No.2400 of 2012 and C.R.P.(PD)(MD)No.2651 of 2012 S.Nishath .. Petitioner in C.R.P.No.2400/12 and respondent inC.R.P.No.2651/12 Vs. S.Shajila Beevi alias Shasila .. Respondent in C.R.P.No.2400/12 and petitioner in C.R.P.No.2651/12 Common Prayer Petitions filed under Article 227 of the Constitution of India against the fair and decretal order dated 16.10.2012 passed in I.A.No.204 of 2012 in GWOP No.120 of 2012 on the file of the District Judge, Kanyakumari at Nagercoil. !For petitioner in C.R.P.2400/12 and respondent in C.R.P.No.2651/2012 ...Mr.G.Prabhu Rajadurai ^For petitioner in C.R.P.No.2651/12 and respondents in C.R.P.No.2400/12...Mr.G.R.Swaminathan :COMMON ORDER
Heard the learned counsel for both the parties.
2.Compendiously and concisely, the germane facts which are absolutely necessary for the disposal of these civil revision petitions would run thus:
2.The father of the child filed G.W.O.P.No.120 of 2012 seeking the following reliefs:
"Appointing the petitioner namely father as guardian of the minor child S.Sheik Mohammed having the custody of it till the attaintment of majority".
While so, he also filed I.A.No.129 of 2012 seeking the following relief.
"To pass interim orders directing the respondent to produce the child before the Court twice in a week in the court i.e on Monday and Friday on the court working dates or in the next date, in case holiday in order to see and have my child for the duration/time to be fixed by the Court till the disposal of the G.W.O.P."
The matter was contested, whereupon the lower Court passed the order. The operative portion of it would run thus:
"In the result, this petition is allowed and the respondent is directed to bring the child in presence of the Senior Administrative Officer, District Legal Services Authority, Kanyakumari at Nagercoil on every Monday and Friday at 1.30 p.m to 05.00 p.m. The petitioner only is permitted to be seen with the child in the above said time within the premises of District Legal Services Authority, Kanyakumari at Nagercoil and the petitioner is not permitted to take the child outside the premises of the Legal Services Authority. Both parties do bear their own cost."
Subsequently, the mother filed I.A.No.204 of 2012 seeking the modification of the earlier order.
3.After hearing both sides, the Court passed the order, modifying the earlier order as under:
"The earlier order passed in I.A.No.129 of 2012 in G.W.O.P.No.120/2012 dated 15.09.2012 is modified to the effect that the respondent is directed to bring the child in the presence of the Legal Aid Officer, Legal Services Authority, Padmanabhapuram, once in a week i.e on every Monday at 1.30 p.m to 05.00 p.m. The petitioner only is permitted to be seen with the child in the above said time within the premises of Legal Services Authority, Padmanabhapuram and the petitioner is not permitted to take the child outside the premises of the Legal Services Authority. Both parties do bear their own cost."
4.Being aggrieved by and dissatisfied with the order of the Lower Court, the father preferred C.R.P.No.2400 of 2012. Similarly, the mother also preferred C.R.P.No.2651 of 2012 as against the same order.
5.The learned counsel for the father would put forth and set forth his arguments, which could pithily and precisely be set out thus:
The father is a business man, who had already for ten days, retained custody of the child with him. On account of such fact, he can retain the child in spells of two days, so to say, from the morning of a day to the evening of the next day, by way of executing interim custody or visitation right. Unless the child is allowed to be with father for such considerable time, the child could not recognize him as his father and develop affinity with him, if the child is always retained in custody, by the mother. The child cannot cultivate love and affection towards the father. In view of the same, this Court may recognize the parental right of the father also, while considering the interest of the mother over the child.
6.Earlier order was passed by the lower Court in I.A.No.129 of 2012 to the effect that on Mondays and Fridays between 1.30 p.m and 05.00 p.m, the father could meet the child in the Court premises at Padmanabhapuram. Subsequently, that order was modified to the effect that the father could see the child only on one day i.e on Monday in a week. This actually caused great mental agony to the father. Arguing as above, the learned Counsel for the father has prayed for modifying the order of the lower court.
7.Per contra, the learned counsel for the mother, in a bid to slap down and pulverise the arguments as put forth and set forth on the side of the father, would pyramid his arguments, which could pithily and precisely be set out thus:
In Black's Dictionary step-up-visitation theory is contemplated and the same is extracted hereunder for ready reference:
"Visitation.
1.Inspection; superintendence; direction; regulation. 2. A relative's esp. a noncustodial parent's, period of access to a child. - Also termed parental access; access; parenting time; residential time. 3. The process of inquiring into and correcting corporate irregularities.
4. Visit.
Grantparent visitation. A grandparent's court-approved access to a grandchild. The Supreme Court recently limited a grandparent's right to have visitation with his or her grandchild if the parent objects, citing a parent's fundamental right to raise his or her child and to make all decisions concerning the child free from state intervention absent a threat to the child's health and safety.
Restricted visitation. See Supervised visitation. Stepped-up visitation. Visitation, usu. For a parent who has been absent from the child's life, that begins on a very limited basis and increases as the child comes to know the parent. - Also termed step-up visitation. Supervised visitation. Visitation, usu. Court-ordered, in which a parent may visit with the child or children only in the presence of some other individual. A court may order supervised visitation when the visiting parent is known or believed to be prone to physical abuse, sexual abuse, or violence. - Also termed restricted visitation."
Taking note of the said theory, this Court could see to it that the child is not bulldozed into some uncongenial atmosphere; there may not be any situation which might cause deleterious impact in the mind of the child. The expectation of the father that the child should be under his custody for a period of two days, is a too big period, for such child of tender years. Moreover, the child is a suckling and the father cannot partake the place of mother in that aspect. Moreover, travelling from the mother's residence i.e from Kaliyakavilai to the Court premises at Padmanabhapuram would be a tiresome one for the child and that would not be good for the health of the child also. Over and above that, the mother being a muslim lady, cannot be there in the Court atmosphere to the gaze of others and take her food and feel free. Wherefore, as per him, the order passed by the lower Court has to be modified.
8.The learned counsel for the mother would also make an extempore submission that in the Court premises at Kuzhithurai, the father could be permitted to see the child on a day in a week between 1.30 p.m to 05.00 p.m and that would amount to honouring the visitation right of the father and that would be sufficient to meet the ends of justice also, pendente lite.
9.The point for consideration is as to whether there is any perversity or illegality in the order of the District Judge in passing such impugned order in I.A.No.204/2012, which is extracted supra?
The Point:
10. What I could glean from the arguments on both sides, is that indubitably and incontrovertibly the child, which is about 15 months old, as of now, is with the mother; no doubt, pendente lite, the father should be given opportunity to exercise his visitation right and that cannot be denied in toto. Earlier, as per the order passed in I.A.No.129 of 2012 for two days in a week, he was getting the visitation right, i.e on Mondays and Fridays between 1.30 p.m to 5.00 p.m in the court premises at Padmanabhapuram. Now, then, by the latest order, that right got curtailed and dwarfed. One should not loose sight of the fact that it is only an interim measure and not a permanent feature. The interim orders are changeable, depending upon the circumstances.
11.Taking the child for about 30 kilometres from the residence of the mother of the child to the Court at Padmanabhapuram, in my considered opinion, would not be conducive for the child. What I could understand from the Bar members is that there is Sub-Court/District Munsif court in Kuzhithurai, which is almost 7 kilometres from the mother's residence and that could be the venue of visitation, in stead of Padmanabhapuram. In fact, the District Judge is only at Nagercoil and exercises his power. Wherefore, to shift the venue of visitation from Padmanabhapuram Court premises to Kuzhithurai Court premises, parity could be achieved and it will bring relief to the child.
12.In my considered opinion, twice in a week, so to say on Mondays and Fridays, the father could be given the chance of seeing his child between 11.00 a.m and 5.00 p.m in the Court premises of Sub-court/District Munsif Court at Kuzhithurai. In my considered view, if in toto, the prayer of the mother is accepted that would amount to the risk of repetition and pleonasm. I would like to point out that such exercise of visitation right of the father over the child, would be a namesake one, which cannot be countenanced. In the meantime, inasmuch as the child is 15 months old, the father keeping such child in custody from a day's morning till the next day's evening, would be certainly causing inconvenience and discomfiture to the child. As such, as a purely interim measure, the order passed by the Lower Court is modified hereunder:
(i) The mother shall see that the child is brought to the Court premises, Sub-Court/District Munsif Court at Kuzhithurai, where the husband and his parents could have the company of the child between 11.00 a.m and 05.00 p.m on every Mondays and Fridays till the disposal of G.W.O.P., which is expected to be disposed of, within a period of two months from the date of receipt of a copy of this order.
(ii) It is also made clear that the learned District Judge, Kuzhithurai, shall dispose of G.W.O.P.No.120 of 2012 untrammeled or uninfluenced by any one of the observations made by this Court, in this order. The learned Sub Judge, Kuzhithurai and in his absence, the learned District Munsif, Kuzhithurai, shall make arrangements for the peaceful implementation of the order of this Court in the Court premises at Kuzhithurai, and necessary facilities be provided to the parties in the Court premises, so that the mother and the child could take the food enjoying privacy."
13.The point is answered accordingly.
14. As such, these Civil Revision Petitions are disposed of, by modifying the order of the lower court as above in I.A.No.204 of 2012 in GWOP No.120 of 2012 on the file of the District Judge, Kanyakumari at Nagercoil. Consequently, the connected miscellaneous petition No.2 of 2012 in C.R.P.(md).No.2400 of 2012 is closed.
vs To
1.The District Judge, Kanyakumari at Nagercoil.
2.The Sub-Court/District Munsif Court, Kuzhithurai.