Delhi High Court
Smt. Shilpi Thapar vs Shri Manan Thapar on 23 November, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 23rd November, 2015
+ CM(M) No.1425/2013, CM Nos. 20801/2013, 9238/2014, 20961/2014,
59, 2747 & 113567/2015/2015
SMT. SHILPI THAPAR ..... Petitioner
Through: Mr. Sumit Chander & Mr. Satya Narayan,
Adv.
versus
SHRI MANAN THAPAR ..... Respondent
Through: Mr. P. Banerjee, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Open Court)
This petition seeks the setting aside of the order of 21st December,
2013 passed by the learned Guardian Judge (West), in G.P. No.53/2012.
By way of the said order, interim custody of the child -- Master Siddhid,
was directed to be handed over by the petitioner-mother to the respondent-
father on 3rd January, 2014 till 6th January, 2014. The said order has
become infructuous by virtue of subsequent orders of this Court and the
interim custody and visitation rights were duly afforded to the parents in
the interest of the child. On 2nd January, 2014 when the case was first
listed in, the following order was passed the interest of the child on the:
CM(M) No. 1425/2013 Page 1 of 36
"CM(M) No.1425/2013 & C.M.No.20801/2013(stay)
1. Issue notice, returnable on 3rd January, 2014.
2. Mr. Sanjay Poddar, learned senior counsel for the
petitioner states that the minor child Master Siddhid is 4 years
old and presently is not keeping well as he has been suffering
from viral fever and other cold related infections for the last 15
odd days. It would, in the circumstances, not be appropriate
for the child to be transferred temporarily into the custody of
the father. Therefore, the petitioner mother seeks that the
interim order granting interim custody of the child to the father
from 3rd to 6th January, 2014 be stayed. However, the
petitioner will welcome the father when he visits the child at her
residence so that the due paternal affection is available to the
child which indeed is every child's right.
3. In view of the aforesaid submissions of counsel apropos
ill-health of the child, it would not be in the latter's overall
interest and welfare if his custody is disturbed from the mother,
at least till his stated convalescence, hence operation of the
order of the Trial Court to the extent that it grants custody of
child to his father from 10.00 a.m. of 3rd January, 2014 to 4.00
p.m. of 6th January, 2014 is stayed. However the father will be
free to visit the child at the residence of the mother and who
shall ensure that a conducive environment is made available for
his proper meeting and interaction with his son Master Siddhid.
The father would also be free to take the child to a
doctor/hospital for a second opinion or other medical care as
may be deemed necessary. The mother (petitioner) or any other
maternal relative or assistant could accompany the father for
this purpose between 3rd and 6th January, 2014.
4. Order as well as notice be given dasti under signatures
of the Court Master"
CM(M) No. 1425/2013 Page 2 of 36
Thereafter the case had floundered in a manner that no parent
would wish for his/her child. The subsequent orders have a rather
unfortunate story to tell. On 25th April, 2014 the Court recorded:
"CM APPL. 6972/2014 in CM(M) 1425/2013
This CM seeks modification of this Court's orders
dated 10.01.2014 and 26.03.2014 and cessation of
visitation of the child with the father. The grounds
mentioned are that the child is undergoing some
psychological treatment. The psychiatrist has neither
mentioned the reasons nor the symptoms of such alleged
disorder.
This Court notices that initially meetings were held in the
office of Mr. Sanjay Poddar learned Senior Counsel and
it was only when the counsel for the parties confirmed
that the meetings were fruitful and yielding the desired
results that the father was permitted to take the child out
to any child friendly place including the house of child's
paternal grandparents. It was also observed that the
mother could be in the vicinity of the place of visitation,
so that she could observe the visitation from a distance
without being a distraction, and the father would be free
to bring along his mother i.e. child's paternal
grandmother for the visitation.
There was clear progress apropos the building up of a
reckonable bond between the father and the child. Now,
after almost 11 weeks, this application has been
preferred stating that the child is suffering from some
emotional disorder which may prove detrimental to the
mental health of the child. The medical report is dated
18th of March which is prior to the directions issued by
this Court on 26th March, 2014. If the medical report
were to be relied upon then the mother should have
brought it the notice of this court. If the visitations have
or were having an adverse impact on the child then she
CM(M) No. 1425/2013 Page 3 of 36
ought to have intimated the Court promptly; indeed it
would be deemed her duty to do so in the overall interest
of the child. However, she herself chose to ignore the
report perhaps for its sheer irrelevance due to the
subsequent events. Evidently, the medical report of
18.03.2014 is unreliable, it purports to overreach the
orders of this Court. No reason is made out to entertain
this application. The same is hereby dismissed.
Learned counsel for the petitioner states that for the last
two occasions, the child could not be brought to meet the
father since he was no keeping well. Mr. Prosenjeet
Banerjee, learned counsel for the respondent states that
there was no such communication to the respondent.
Counsel for the petitioner/applicant Mr. Satya Narain
states that a SMS was sent from his mobile number to the
father. Counsel for the petitioner upon instructions,
assures the Court that the child shall be brought to meet
the father on the days ordered by this Court. It is further
agreed by them that all communication apropos fixing or
change of schedule shall be only between the counsel for
the parties by phone or e-mail address at least four hours
in advance. Learned counsel for the respondent Mr.
Prosenjeet Banerjee has given his mobile number as
9810150114. Every visitation default shall be
made up by making the child available for visitation with
the father on the next such date as the father may
intimate.
The visitation hours are hereby increased from four
hours to six hours. Now, the visitation meetings will be
held four times in a month on weekends. The weekend
meetings may be adjusted mutually between the parties
for any gazetted or local holiday in the month.
CM(M) 1425/2013
Renotify on the date already fixed i.e. 06.05.2014."
CM(M) No. 1425/2013 Page 4 of 36
The order dated 6th May, 2014 reads as follow:
"CM No.20801/2013
Learned counsel for the parties, upon instructions, states
that the visitation hours may be reduced but the frequency of
the meetings could be increased. Accordingly, the visitation
hours are reduced from six hours to three hours each and the
frequency is increased to six times a month. The additional two
visitations can be on the weekends or holidays with the mutual
consent of the parties. As directed earlier, the communication
apropos visitations shall be done through counsel for the
parties.
List on 30th October, 2014."
The order dated 26th May, 2014 reads as under:
"Learned counsel for the respondent states, on
instructions, that without prejudice to his rights and contentions
the respondent will pay an amount of Rs.1.00 lakh towards the
expenses that may have been incurred by the petitioner-Mother
for the maintenance of the child since their estrangement. The
aforesaid amount shall be deposited in two instalments, on
9.6.2014 and 30.6.2014, into the account in which the other
payments are being made.
He submits that the Trial Court order impugned in this
petition had granted visitation rights to the father to share the
holidays with the son and interim custody of the son for four (4)
days was granted to the father. However, that could not be
given effect to. He submits that in the last nearly five (5)
months, the father has met the child eighteen (18) times and
there has been much progress, which has been recorded in this
Court's order on 26.3.2014 and again on 25.4.2014. He
submits that the holidays would be meaningful for the child, if
the child spends some quality time with the father. This Court
finds that with the progress having been made in the preceding
months, it would be in the overall interest of the child to permit
CM(M) No. 1425/2013 Page 5 of 36
the father to keep the child for one (1) night at a time. The
father will take the child on 31.5.2015 at 4:30 p.m. and drop
him back at 4:00 p.m. the next day. To overcome any
difficulties with respect to timing, the coordination shall be
through respective counsel. The exercise shall be repeated for
the next weekend too.
It is informed that the birthday of the child falls on 30 th
June. As requested by the learned counsel for the respondent-
father, it is directed that on 30.6.2014, the child shall be partly
in the custody of the father. The father shall pick up the child
on 30.6.2014 at 10:00 a.m. and drop him at 4:00 p.m. and
thereafter the child shall remain with the mother for the
remaining part of the day.
List on 30.10.2014."
There was alleged non-compliance of the orders dated 25.04.2014
and 26.05.2014 by the mother and three contempt petitions were preferred
by the respondent-father against the petitioner-mother, which are stated to
be pending Accordingly, Ms. Nandita Choudhary, Child Psychologist at
Lady Irwin College, RAK Child Study Centre, New Delhi was asked for
her advise apropos the visitation rights of Master Siddhid. On 14th January,
2015 the following order was passed:
"CM No.20961/2014(by petitioner)
At request of the learned counsel for the parties,
renotify on 9th March, 2015.
CM(M) No. 1425/2013 Page 6 of 36
The learned counsel for the parties submit, upon
instructions, that both the parties would make efforts for
the meetings to be more conducive and the mother
especially, would make concerted efforts to prepare the
child to meet the father every time a visitation/meeting is
scheduled.
The learned counsel for the applicant submits that
the mother's employment is being affected because of the
regular visitation schedule fixed by the Court, for which
she has to bring the child.
In the circumstances, Mr. Prosenjit Banerjee, the
learned counsel for the defendants, states, upon
instructions, that he has no objection to rescheduling of
the Saturday visitations so as not to affect the
plaintiff/mother's employment. Therefore, visitation for
Saturdays is, for the time being clubbed with the
visitation hours of Sunday. Accordingly, the child would
meet the father every Sunday from 12 p.m. to 6 p.m. (for
a maximum period of six hours). The visitation could be
either at the Mediation Centre or such other place as
may be decided by the Mediator. The visitation
scheduled for weekdays shall be held between 5:30 p.m.
and 7:30 p.m. or such other lesser hours as the father
may agree to, so as to accommodate the mother's
travelling after office hours on weekdays.
The learned counsel for the plaintiff/applicant further
submits that the mother has employed a private tutor for
the child and the interim allowance needs to be revisited
in view of the burgeoning expenses of a growing child.
The amount earlier fixed by this Court was Rs.15,000/-
per month on 10th January 2014. A year has passed by.
Factoring-in the rate of inflation, the growing needs of
the child and the expenses towards the tutor, the interim
maintenance amount is revised to Rs.25,000/- per month,
without prejudice to the rights and contentions of the
parties."
CM(M) No. 1425/2013 Page 7 of 36
During the course of hearing, the Court noted that the
father/respondent had voluntarily made payments of Rs.15,000/- per month
to the mother for the maintenance of the child, without prejudice to her
rights of maintenance under Section 24 of the Hindu Marriage Act, 1955.
Over and above this, the father had also paid Rs.1,00,000/- to the mother
during the course of the proceedings. From 13th January, 2015 onwards,
the father had paid an enhanced maintenance amount of Rs.25,000/- per
month to the mother.
With the consent of the parties, the chamber of Mr. Sanjay Poddar,
the learned Senior Advocate was used as the venue for meeting of the
parties and the child. They were to meet four times a month for a duration
of four hours every weekend. Subsequently, Mr. Sanjay Poddar, the
learned Senior Advocate withdrew from the proceedings.
On 5th March, 2015, the following order was passed.
"The learned counsel for the parties submit, upon
instructions, from the respective parties, i.e., the mother
and the father of the child, Master Siddhid, that on the
occasion of Holi tomorrow, the child shall be brought to
the GK-II Welfare Association, Opposite Anupam Sweets,
M-Block Market, New Delhi by 11:00 a.m. A car shall
be arranged by the defendant/father, which shall bring
the mother and the child to the Holi Milan Festival where
the counsel for the parties may remain present, if they so
CM(M) No. 1425/2013 Page 8 of 36
desire. The child will be left with the father for at least
one (1) hour. The mother may remain in the vicinity and
shall maintain some distance so that the father can have
a meaningful interaction with the child without any
distraction to the child. The mother will prepare the
child for this meeting to assist in a meaningful
interaction between the father and the child so that a
healthy bond is built between them. The mother would be
free to take back the child at 1:00 p.m.
At this stage the learned counsel for the parties
request for the appointment of a Local Commissioner,
who shall observe the proceedings. Accordingly, Ms.
Nidhi Chopra, Advocate (Mobile Nos.9654852099;
9911220961), who is present in Court, is appointed as
the Local Commissioner, who shall remain present
during the period the child remains with the father.
On Saturday and Sunday, i.e. 7th & 8th March,
2015, the child shall be brought to the father's house at
11:00 a.m. and shall leave from there at 1:00 p.m. The
mother may stay in the vicinity, if she so desires without
being a distraction to the child. She will endeavour to
gradually wean away the child from herself so that he
begins to exercise his independent volition apropos his
natural father - the respondent. The latter shall provide
a vehicle to her for the facilitation and duration of the
visit. For the duration the child remains will be with the
father, only the Local Commissioner shall remain with
the child. The mother will prepare their child for these
meetings also. Mr. Prosenjeet Banerjee, the learned
counsel for the defendant submits that the
defendant/father will endeavour to bring the child's
cousins of the same age group so as to provide him
additional accompany.
The fee of the Local Commissioner is fixed at
Rs.15,000/- per day apart from travel and other out-of-
pocket expenses.
CM(M) No. 1425/2013 Page 9 of 36
List before the Court on 12.3.2015.
The Local Commissioner shall file her report by
11.3.2015.
Dasti to the learned counsel for the parties under
the signature of the Court Master."
On 12th March, 2015, the report of the Mediator was
considered and the following order was passed.
"The Local Commissioner's report is taken on record. It
has a detailed account of the meeting held on 6 th, 7th and
8th March, 2015. The report notes that some progress has
been made in the three meetings, particularly on the 2nd
day when the child showed no aversion to meeting or
being with the father. Indeed, the father and the child
were playing together in a separate room away from the
mother. Upon a query put to the Local Commissioner,
she informs the Court that her impression is that the
child is not averse to meet the father as long as he has no
apprehension that he will be taken away by the father. It
appears that the child requires the reassurance of the
mother's presence.
In the circumstances, the Court is of the view that further
meetings, preferably twice a week, should continue at a
child friendly place.
The learned counsel for the parties suggest that, for the
moment, the Delhi High Court Mediation and
Conciliation Centre, Administrative Block which has
child friendly amenities would be the best suited place for
the meetings.
Accordingly, the child shall be brought to the aforesaid
centre tomorrow i.e. on 13.03.2015 at 3.00 pm where the
father will meet him from 3.00 pm to 5.00 pm in the
presence of Ms. Veena Ralli, Mediator who had assisted
CM(M) No. 1425/2013 Page 10 of 36
the parties earlier. Further visitations be held on
21.03.2015 and 27.03.2015 at the same place and time in
the presence of Ms. Ralli. In her absence, the
meeting/visitations shall be held in the presence of Ms.
Nidhi Chopra, Local Commissioner. The mother shall
remain at visible distance from the child during the
visitations as a form of reassurance to him but not
necessarily in the same room.
The learned counsel for the parties submit that Dr.
Nandita Chaudhary, Child Psychologist and Family
Counsellor, has been consulted earlier. She has
informed them that she would be available in Delhi only
after 29th March, 2015 but her schedule of fees and
convenience has to be ascertained. Let them do so by the
next date of hearing.
The fees of the Local Commissioner, if she is required to
assist, shall be Rs.15,000/- per visitation meeting.
The Mediator, as well as the Local Commissioner, if so
required, shall file their reports by 25th March, 2015 with
a copy of the same to the learned counsel for the parties.
Renotify on 26th March, 2015.
Dasti under the signature of the Court Master."
On 26th March, 2015, the following order was passed.
"CM No.2747/2015
The mediator's report is submitted in a sealed
cover which has been opened and read. It states that the
meeting between the child and the father has been
encouraging. The mediator further noticed that "the
child kept on holding (sic) hand of his mother and kept
on clinging to her. He threw all the items with full force
brought near him for diverting his attention towards toys.
On being offered a glass of water, he did not hesitate in
picking up the glass and throwing with full force totally
CM(M) No. 1425/2013 Page 11 of 36
oblivious of its effect. A strange thing was notice that
when he picked up the glass, he was smiling and said he
wanted to but he threw the glass with full aggression."
The report further observed that "there was no
significant effort made from the side of the mother to let
the child leave her hand......"
"The situation portrayed was as if the child does
not live without (sic) mother at all whereas the child goes
to school and the mother (sick) goes to office. In bother
the situations, the child stays without mother......."
The report further states that after the aforesaid
incident of throwing of the glass with full aggression, the
mediator took the child outside the Mediation Centre
with the father and allowed the child to walk around
Chamber Block-2 in the arms of his father, while he was
observed by the mediator from a distance. It was noticed
that the child was comparatively more comfortable and
was smiling, but the minute he was brought near his
mother, he again held her hand and started saying that
he would not leave his mother's hand.
The aforesaid observations show that the child
surely requires the assistance and intervention of a child
psychologist. This Court is of the opinion that the child is
neither scared of the father nor is he uncomfortable in
the company of his father. If anything, the aggressive
behaviour occurred when the child was in the presence of
his mother.
The learned counsel for parties submit that Ms.
Nandita Choudhary, the child psychologist who would be
consulted by the parties is likely to be available after the
29th of March, 2015 and that she would be consulted
during the ensuing holidays on a regular basis.
The parties shall present themselves before Ms.
Nandita Choudhary depending upon her convenience.
The parties shall consult her with the child on the 1 st of
CM(M) No. 1425/2013 Page 12 of 36
April, 2015 and on such successive dates and time, as she
may indicate. A communication in this regard shall be
made between the parties through an SMS or an e-mail.
The learned counsel for parties assure full and
prompt cooperation for the proper psychological
assessment and consultation with the child psychologist
Ms. Nandita Choudhary, in the overall welfare of the
child.
Renotify on 16th April, 2015.
After evaluation of the child‟s psychological condition Dr. Nandita
Choudhary, the Child Psychologist gave her expert opinion through four
reports which are reproduced hereunder:
In the report dated 1st September, 2014 the Child Psychologist had
observed as follows:
"1. The child is very close to the mother and shares an
affectionate bond with her.
2. There is no doubt that his attachment to the mother is
indicative of some anxiety, perhaps on account of being
in the court environment, it is not very favourable for
child.
3. There is NO DOUBT that the child showed extreme
hostility towards the father, both for drawing and in
person. He constantly looked at the mother to see her
facial expression. When the mother and I encouraged
him to accept things from the father or pick up something
he had thrown, he willingly followed the instructions. It
seemed as if the child‟s hostility towards the father is not
SIMPLY on account of the relationship or incident with
the father, but also a STORY that has been created for
CM(M) No. 1425/2013 Page 13 of 36
him by others, may be not the mother but may be the
other family members with which he spends his day
after school, while the mother is at work.
4. It is no possible for me to verify whether the father
did indeed slap the child or not, or whether the child is
tutored and by whom and how much, but the end result is
clear.
5. The child is disturbed, anxious and actively hostile
towards and rejecting of the father. The cause of this can
be may and some possible ones are listed here:
The father wants to be close to the child but cannot
accept mother‟s role, although he said towards the end
that he does not want to take the child away.
The father wants to be with the child alone, but the child
is afraid for some reason. It may have had to do with the
father‟s last visit, but that cannot be only thing. The
father has definitely been demonised in the child‟s mind
by SOMEONE. My feeling is that it is not the mother,
but the people whom he stays with. They love him and I
don‟t think they realize how much this is hurting him.
The child is very confused and ambivalent and therefore
even aggressive BUT was willing to smile at and to
accept the father WHEN the mother told him to..
My recommendations:-
Based on my observations both mother and father are to
focus in each other place in the child‟s life and each of
them wants to the BEST for the child. However, in
going about this they have lost focus of the child on
account of the bitterness between them and the history of
legal battles that have clearly aggravated the situation. At
the end of the day, it is the child who has been biggest
victim of this drama.
CM(M) No. 1425/2013 Page 14 of 36
The child is highly anxious, disturbed and destructive and
this meets immediately attention.
1. They must return to regular visits of the father. The
first visit MUST BE in the mother‟s presence. For the
sake of the child‟s psychological well being she MUST
be positive towards the father. I have counselled both
father and mother and have demonstrated to them the
extent of the damaged they have already done to the chld.
2. Extended family members MUST be told that by
demonizing the father, the child is been damaged. This
must stop. If the mother is also doing this, even subtly, it
MUST STOP otherwise child will have long term
difficulty with anxiety at hostility.
3. After the first visitation with both, if it is acceptable
to the child, the mother can it around while the father
take a more active role.
4. The next visit can be independent between father and
child.
5. Custody of the child MUST remain with the mother.
6. The father‟s place in the child‟s life MUST be treated
positively by the mother and the family otherwise the
child will SUFFER irreparable psychological damage if
this kind of hostility continues. Please see the scratched
out drawings as evidence."
In her reported dated 25th May, 2015, the Child Psychologist
gave the following instructions for the month of June, 2015:
" 1. There will be two visits where the mother and father
will be present.
2. The location will be picked by the child.
3. One of them should be on the child‟s approaching
birthdate
CM(M) No. 1425/2013 Page 15 of 36
4. The mother and her family must prepare Siddhid for
the meetings with a positive approach. However hard
this may be for them. This is in the child‟s best interest.
The child must NOT be given a choice. He will be able
to do it and will understand once the adults around him
DO NOT give him a choice.
5. When the father comes, the mother will withdraw
from active participation and ignore the child gently,
allowing him to move around. In case he asks to go the
toilet or drink water, she must firmly tell him "You are
old enough you are a big boy, you can wait" If he asks to
sit on her or cling to her, she must gently but firmly insist
he is old enough to sit on his own and play with his
father. The mother should be reaching a book or
magazine.
6. For his part Manan MUST NOT insist on showing or
giving the child anything. He should be pleasant and
open and willing, but NOT forceful in his approach to the
child. The child must seek out the father, even if it
means an hour of waiting in silence. Manan must smile
favourably and pleasant smiles at the child and say, " I
have come to meet you, to spend time with you. I want
to be here with you". The visits should be quiet and
interactive as and when the child approaches. This
change in attitude will surprise the child, and he will seek
different ways of dealing with it. This is what I am
concerned about. Please report his reactions to me when
me meet.
7. For birthday party, the father must be present, carry
something for the child. The mother MUST receive the
gift and show it to the child and say "your father has
brought this for you". After the birthday is over and the
father has left, the mother must remind the child, even if
he chooses not to pick it up.
CM(M) No. 1425/2013 Page 16 of 36
8. There is no need to mention any fake and sugary
praise for each other, since Siddhid is very bright and
will realize something is wrong. Be factual like "your
father brought this for you and I want you to play with
it". Don‟t insist, but don‟t ignore.
9. The other visit can be anywhere where the CHILD
chooses. Firmly he HAS TO BE TOLD, you have to
meet your father, then give him a choice about place.
Please do NOT ask him IF he wants to meet the father.
This will confuse him. Choice must be given about
details and not whether or not the meeting will happen.
This firmness along with some choice will make the child
feel as if he has some say in the matter.
10. These two visits MUST be conducted carefully. I
trust that both Shilpi and Manan love their child and
would like to see him happy. Please understand that in
case these instructions are not followed and these
conditions are not complied with, I shall withdraw my
participation in the case. Both parents must keep a report
ready for me (verbal) when we meet in July. In case I
find any unwillingness or resistance on their parts, the
offer of assistance shall be withdrawn forthwith.
11. After the meeting with me in July at the Centre, I
will take a call on independent visitations with the father.
This is in the child‟s best interest and the mother has to
start preparing the child for this. If I find that Shilpi is
resisting this, or Manan is forcing this, again my threat to
withdraw shall be executed.
12. Please take this very seriously and comply. This is
in their child‟s best interest.
13. The only person who I am willing and trust as an
observer is the Mediator, Mrs. Veena Ralli. This is only
in case there is a request. From my side, I am willing to
CM(M) No. 1425/2013 Page 17 of 36
trust the parents, as I think they have understood my
point in approaching this in this manner.
14. The duration of the visit, that is the presence of the
father, should be mutually decided. I will leave this
detail to them.
15. The father and mother as well as the family members
MUST UNDER NO CIRCUMSTANCES criticize the
other parent. And no investigations about what happens
should be approached. The visits will ONLY discuss
future meetings and other activities. No investigations
should happen through the child, even in the future, else
you will tear the child to pieces, emotionally. Mothers,
grandmothers, aunts and uncles MUST restrain
themselves in discussing family politics in the child‟s
presence, now and later. This has already had many
serious consequences.
16. I will meet the parents in July after I receive a call
that these two visits have been successful."
In the report dated 13th July, 2015 the Child Psychologist observed:
"Siddhid Thapar
13.07.2015
As scheduled, both Shilpi and Manan arrived in
the Nursery School before time. Siddhid was
asleep on a stool, with his head in his mother‟s
lap. Although I had little opportunity to observe
the child in this session since he was asleep, I did
get to converse with and observe both parents
together. I must report here that there is a clear
thawing of the relationship between the two and
the atmosphere related to the child and towards
CM(M) No. 1425/2013 Page 18 of 36
each other was pleasant for the first time since I
started seeing the family. Both reported that there
were two meetings in the month of June
scheduled before and on Siddhid‟s birthday. They
were advised to have two meetings with the joint
presence of both parents. The three of them met in
a public place of the child‟s choice, a mall. Both
parents reported that Siddhid was still clinging to
the mother as usual, refused to take any gift from
the father and still refuses to play with that since it
was given by the father, Shilpi reported. Shilpi
also mentioned about three times, that on account
of the fact that there was to be a joint meeting on
the child‟s birthday, saying the travel plans were
spoilt, the travel plans were changed. And then
went on the further describe the birthday itself,
which was held just one day before the beginning
of school term. She also added that much of the
child‟s holiday homework was to be completed,
and was mentioning how she has really no
patience with that since she is "not creative". She
also mentioned that she would now have to carry
Siddhid out since he was sleepy and sluggish, at
which point, I intercepted and said that this was
not advisable for two reasons. The child must
learn that he is in a public space and should walk
on his own, even if he is sleepy (as long as not
fully asleep); and secondly, Shilpi herself needs to
care for her own health and back (she frequently
complains of backache). Picking up a tall six year
old is not easy. But I have noticed that Shilpi does
it often. This intense need to be stuck to the
mother seems clearly reserved for periods when
the father is around. I repeated to Shilpi that the
father‟s conduct can no longer be held exclusively
responsible for such an intense reaction, even if it
were true; and it is Shilpi and Siddhid‟s other
caregivers who need to work more seriously on
CM(M) No. 1425/2013 Page 19 of 36
the acceptance of the father. Something in the
child‟s current environment is sustaining this
clinging and it must be attended to. This sort of
clinging is not at all conducive to a happy and
comfortable childhood, much of which has
already been disrupted for Siddhid. It needs to be
understood that a speedy and effective strategy for
movement of Siddhid towards independent time
with the father is an urgent need, both for the
child as well as for the mother. And certainly also
for Manan, who has shown sensitivity and
understanding, and has accepted how in the past
his frustrations had led him to force the child to be
with him. He says he understands that this is
harmful and has promised that will never happen
again.
When the topic of the strain on Shilpi as
well as her mother, in caring for Siddhid came up
in the conversations, related to homework as well
as care, I used the opportunity to insert a
suggestion. But first I decided to ask Shilpi "Do
you trust Manan with Siddhid; I mean, do you
trust him to keep the child safe". Without
hesitation, Shilpi said "Yes". Manan reminded
her of the time when he (the child) would wake in
the night and he (Manan would wake up and pace
around with him in his arms. Shilpi agreed to that
and nodded her head. Siddhid was still drowsy
and clinging to the mother with his head on her
lap. This was the moment I was looking for. I
suggested to Shilpi that she should understand that
here is the child‟s other parent, so keen to
participate in parenting, who would be willing to
keep the child on days when she is busy and also
assist in things that she may not be wanting to do
(homework); why doesn‟t she accept that offer. I
continued saying that being a complete single
CM(M) No. 1425/2013 Page 20 of 36
parent is a huge strain, and her mother (Shilpi‟s)
has placed her life on hold, staying away from her
husband (Shilpi‟s father) to assist Shilpi. "Why
don‟t you understand that you have a willing and
able person, one whom you say you trust; why
don‟t you accept him as a partner in caring for the
child? Why deprive the child of this support and
this relationship? You know it cannot happen
without your approval, the child is so sensitive to
what you say and do." Instantly when the issue of
"independent" visitations came up, there was a
clear stonewalling again saying the child is not
ready.
This is my assessment. Shilpi continues to
treat Siddhid in a "baby-like" method to keep him
within her range, and uses this as a continued
excuse to keep Siddhid from having independent
time with Manan. I am not implying that this is
deliberate; more likely that this is subconscious. I
cannot believe that a child who goes to school and
spends the day on his own, is good in studies and
is able to be with his tutor and spends much of the
day away from his mother, is unable to spend
independent time with the father. I am suggesting
now, a clear and distinct strategy for independent
time of the father with Siddhid is a long-term
goal. By long term, I mean two months from
now. Manan has waited patiently on the sidelines,
and I want him to understand, that rather than
gifts, it is DOING things together, like homework
and sightseeing, that will have the best impact. I
am concerned that this should not be forced, and
yet the clinging and cringing is persisting. For
this, Shilpi will have to be together for a while
and then pretend to go to the toilet or something,
clearly informing the child that she will take a
while, and that Siddhid HAS to be with the father
CM(M) No. 1425/2013 Page 21 of 36
and enjoy himself during that time. This script
has to be in place before leaving, otherwise
Siddhid will return to his violent expressions of
the past. In order to do this, the practice has to
start now, each time they meet in a week, short
departures within range are recommended. After
this, these should get longer. Shilpi and Manan
both have to make time for this. I will be happy to
be present for two sessions per month, the other
two must be done closer to where the child is.
Shilpi can be given another two months to
complete this transition. I believe that Manan has
been very patient in waiting on the sidelines to
spend time with his child, and Siddhid is too
young to know that the father is his partner parent.
This has to be explained to him. What the two
parents do between each other is their decision as
adults, to live together, to separate or divorce; but
what they do with the child impacts a life for
whom the court and therefore I, am responsible.
That decision cannot be left to Shilpi for she is not
in a position to take that decision. She is too
closely bound by her resentment towards Manan
to see his point of view. It is essential that she be
given a timeline for this transition, and I am
transitioning to independent visits by the father.
My concern during our sessions has always
been that the fact that 6 year old Siddhid is
attached to his mother, in fact, clinging to his
mother, is one reason why Shilpi can argue that he
is not ready to be with the father and that this will
create stress for the child. In fact this is definitely
true. Yet, there is a distinct observation I have
made that Shilpi therefore continues to support
and even encourage this clinging, arguing with
emotion, he is just a child. Although I can fully
understand her concern, I am also equally (if not
CM(M) No. 1425/2013 Page 22 of 36
more) concerned about the fact that Siddhid must
now begin independently meeting his father. If he
is able to stay all day without his mother, interact
with and be successful at school and also stay
with his grandmother, there is absolutely no
reason why he should not spend independent time
with the father. I therefore urge the court to allow
weekly joint meetings where Manan gets
substantial time with the child along with the
mother till October 1st. The easing up of the
relationship between the two will certainly
facilitate a thawing of things with the father. In
order for this to happen, Shilpi may be instructed
to work systematically and concertedly, along
with all other caregivers, to provide a smooth
transition to independent time with the father. If
they do not allow for this to happen, the child will
suffer greatly, both the absence
of the father, as well as more seriously, the
continued hostility that will further prevent the
child from gaining a mature passage to middle
childhood. In fact, it has been found in recent
research, that „father absence‟ has far more
serious consequences for boys than for girls. The
parents will do well to read the following-link for
their information.
http://www.theguardian.com/lifeandstyle/2015/ma
y/09/philip-zimbardo-boys-are-a-mess
Nandita Chaudhary"
In her final report dated 3rd September, 2015 the Child
Psychologist notes:
"Report of meeting with Shilpi and Manan Thapar
20th August, 2015
RAK Child Study Centre
Lady Irwin College
CM(M) No. 1425/2013 Page 23 of 36
At the outset, I would like to thank Mr. Manan
Thapar for his donation to the Child Study Centre for an
amount of 15,000/-. The receipt for the same may be
picked up from the Office of the RAKCSC, Lady Irwin
College.
The 20th of August, 2015 meeting was for me,
personally, very distressing. Although there seemed to be
some courtesy between Shilpi and Manan which has been
a transformation since I first met them, the lingering
hostility and reluctance to allow Manan to play an active
role as a father still remains. On asking about the
visitations that the parents have had together in the month
of August, both parents reported that they had met in a
public place which the child is familiar with. Shilpi
reported that the child remains completely reluctant to
go to the Mall (where he goes very often anyway) and
keeps questioning the mother about why he has to go.
Based on my knowledge of children, I find it difficult to
imagine an autonomous resistance from the side of the
child. At this age children‟s memories and interpretations
of „others‟ is completely guided by the primary
caregivers; in this case the grandmother (maternal) and
mother. It is so unfortunate that in spite of repeated
discussions and deliberations on the role of a father in a
son‟s life, even when the father and mother do not get
along, have failed to be accepted by the mother. I
continue to see a clear, repeated and persistent reluctance
from the side of the mother to allow her son to meet with
the father. Her opinion is that the son gets upset. Even
though I have tried to help the mother to see that she
herself has a key role to play in the acceptance of the
father, the small efforts that are made in
my presence do not appear to be carried over. Otherwise,
I have no doubt that the father would have been
accepted. Further, despite the long hours and intense
advice put in by me saying the child has a right to the
father, and the father has a right to the child, and that the
CM(M) No. 1425/2013 Page 24 of 36
mother (who reports being overworked and physically
challenged by the caregiving as well as work schedules
which she has regularly mentioned), the idea that the
father can share the caregiving has not been accepted by
her. I base my evaluation on the following fact.
I was shocked to hear a request from the mother
about the cancellation of visits by the father, asking why
they were necessary and why does the child need to be
exposed to this. I indicated that we have had a long series
of discussions in this regard and that they will be able to
see the benefits of this interaction (with the father) only
in the long term, as will the difficulties of growing up
with discord. Since the child is still young, there is still
time to mend the bonds even though the parents may not
see eye to eye. Many progressive countries do not allow
any one parent to even leave the city where the child is
growing up, by law, in order that the child can experience
both parents. I find this backward step in the case deeply
grieving. I reiterated again, that it was the child‟s right,
and it would help her, and that it is also the father‟s right,
who has been repeatedly asking and awaiting a green
signal for when the child can be with him independently
since whenever the mother is around, the child clings to
her.
The mother seems to clearly act as if Siddhid is
hers and hers alone, and Manan is an unnecessary person
in their lives, or worse still, a negative force. This attitude
of the mother was highly inappropriate in my opinion,
and I thought that it indicated clearly to me, that at least I
was unable to get through to Shilpi regarding the
psychological impact of her persistent position, and the
deep dangers that lurk in the child‟s future, the early
signs of which have already been manifested in several
previous encounters. Children need fathers as much as
they do the mothers, especially when they have moved
beyond the early years of infancy. Shilpi has said to me
clearly, in no uncertain terms, that when Siddhid was a
CM(M) No. 1425/2013 Page 25 of 36
baby, she trusted Manan with his care without any
reservation. He would even put the child to sleep
sometimes when Shilpi was tired, they both discussed. I
cannot imagine what forces now urge Shilpi to judge
Manan as a negative influence. Shilpi holds the father
responsible for the insecure attachment that the child
continues to show, by clinging to, smooching her
repeatedly, holding her face so that she can speak to no
one else, and sitting on her, making rather inappropriate
pouting faces at her. I completely disagree with this
evaluation, since the child has hardly spent a couple of
hours with the father in the last five months since I have
been supervising their meetings. Most of this time is
spent clinging to the mother. The responsibility for these
insecurities has to be borne by the present caregivers of
the child, namely the grandmother and mother, and not
the fleeting encounters with the father.
I would like to urge the Hon. Justice that I wish to
withdraw as counsellor for this case on account of the
fact that I am unable to make the mother appreciate the
best interests of the child in spite of repeated discussions.
I think that it is essential for Manan to remain an active
father for Siddhid‟s psychological development, and gain
independent time with him on a regular basis at the
earliest. I would urge the Hon. Justice to find a solution
to the impasse which can only happen now with his
intervention.
Nandita Chaudhary, Ph. D.
September 3, 2015"
It is a matter of record that Dr. Nandita Choudhary has all along
refused to accept any money for her assistance to the Court, which has
been duly appreciated by this Court in the order dated 11 th May, 2015
which reads as under:
CM(M) No. 1425/2013 Page 26 of 36
"The learned proxy counsel for the petitioner submits, upon
instructions, that Dr. Nandita Choudhary, the Child
Psychologist has held two sessions with Master Siddhid; she
has suggested that she would like four sessions with the family
starting from 7th May, 2015 on every Thursday between 4 pm
to 6 pm. The learned counsel further submits that Dr. Nandita
Choudhary has declined to accept any payment as a matter of
principle since her services in this case are a contribution to
society. It is submitted that she has further conveyed through
counsel that if the parties so desire, they may make a donation
to the Centre which runs a programme for under-privileged
children with disability, but such donation may be made after
sessions are over so as not to influence the course of the
meetings or for any impression being formed that there was
any financial element in the proceedings.
The Court would respect Dr. Nandita Choudhary's wish
and appreciates her gesture.
At request of learned proxy counsel for the parties,
renotify on 15th July, 2015.
In the meanwhile, let the report of the Dr. Nandita
Choudhary be brought on record."
Mr. Prosenjeet Banerjee, the learned counsel for the respondent, informed
the Court that the order of 1st September, 2014 in Contempt Case (C)
No.464/2014 observed that Dr. Nandita Chaudhary has opined that the
visitation rights of the father with the minor child should be restored and
the petitioner as well as her family members should be positive about the
visitation rights of the minor child with the father. Taking the report of Dr.
Nandita Chaudhary into consideration, the Court was of the view that the
CM(M) No. 1425/2013 Page 27 of 36
visitation rights of the father with the minor child should be restored
forthwith. However, considering the child‟s inhibition towards his father
at that period in time, it was considered would be appropriate that the
initial meetings should be held in the present of the psychologist.
The final report dated 3rd September, 2015 of Dr. Nandita
Choudhary, is self explanatory and would be of immense authority and
value in determining the manner in which the child‟s custody should be
adjudicated. She has observed that " I continue to see a clear, repeated and
persistent reluctance from the side of the mother to allow her son to meet
with the father. Her opinion is that the son gets upset. Even though I have
tried to help the mother to see that she herself has a key role to play in the
absence of the father, the small efforts that are made in my presence do not
appear to be carried over. Otherwise, I have no doubt that the father would
have been accepted. Further, despite the long hours and intense advise put
in by me saying the child has a right to the father, and the father has a right
to the child, and that the mother (who reports being overworked and
physically challenged by the caregiving as well as work schedules which
she has regularly mentioned), the idea that the father can share the
caregiving has not been accepted by her."
CM(M) No. 1425/2013 Page 28 of 36
Mr. Sumit Chander refers to the report of 13th July, 2015 to state that
the learned Child Psychologist had observed: "Although I had little
opportunity to observe the child in this session since he was asleep, I did
get to converse with and observe both parents together must report here
that there is a clear thawing of the relationship between the two and the
atmosphere related to the child and towards each other was pleasant for the
first time since I started seeing the family."
The learned counsel for the petitioner, fairly also refers to the
portion of the report which says that "And certainly also for Manan, who
has shown sensitivity and understanding, and has accepted how in the past
his frustrations had led him to force the child to be with him. He says he
understands that this is harmful and has promised that will never happen
again." To a query put by the Child Psychologist to the mother "Do you
trust Manan with Siddhid; I mean, do you trust him to keep the child safe.
Without hesitation, Shilpi, said "Yes". Manan reminded her of the time
when he (the child) would wake in the night and he (Manan would wake
up and pace around with him in his arms. Shilpi agreed to that and nodded
her head."
CM(M) No. 1425/2013 Page 29 of 36
The report also advises and cautions: "The child must learn that he
is in a public space and should walk on his own, even if he is sleepy (as
long as not fully asleep); and secondly, Shilpi herself needs to care for her
own health and back (she frequently complains of backache). Picking up a
tall six year old is not easy. But I have noticed that Shilpi does it often.
This intense need to be stuck to the mother seems clearly reserved for
periods when the father is around. I repeated to Shilpi that the father‟s
conduct can no longer be held exclusively responsible for such an intense
reaction, even if were true; and it is Shilpi and Siddhid‟s other caregivers
who need to work more seriously on the acceptance of the father.
Something in the child‟s current environment is sustaining this clinging
and it must be attended to. This sort of clinging is not at all conducive to a
happy and comfortable childhood, much of which has already been
disrupted for Siddhid. It needs to be understood that a speedy and
effective strategy for movement of Siddhid towards independent time with
the father is an urgent need, both for the child as well as for the mother."
In the final report the Child Psychologist submits that despite long hours
and intense advice put in by the Child Psychologist to the effect that child
has a right to the father and father has a right to the child and that the
CM(M) No. 1425/2013 Page 30 of 36
mother, the idea that the father can share the caregiving has not been
accepted by her.
For the reasons mentioned in the said report the Child Psychologist,
finally concludes that: the child was never given sufficient time to develop
the requisite affinity with the father or become comfortable with him,
hence he kept clinging with the mother and ii) it is essential forthe father
to remain an active in the child‟s life for the latter‟s psychological
development, therefore it was essential for the father to gain independent
time with the child on a regular basis at the earliest.
The first interim order on which the petition was preferred has long
become infructuous but the pendency of this case before this Court for the
last nearly twenty-three months have shown that the child‟s interests
emotional growth and psychological development have suffered adversely
because he was neither encouraged not facilitated by the mother to meet
the father in the manner which a child psychologist would have wanted for
him. It is the responsibility of the Court to enhance teh interest of the
child. The report of the Child Psychologist cannot be doubted. The
CM(M) No. 1425/2013 Page 31 of 36
previous conduct of the parties would show that the child has been kept far
away from the father and too close to the mother.
Vide order dated 6th May, 2014, the father was given visitation
rights four times in a month on weekends. Subsequently, this order was
modified to six meetings of three hours in a month, which meant that there
would have been 48 meetings to be held for three hours each for six times
in a month. But the child is stated to have met the father for not more than
12-14 times as per the Court‟s order, including the meetings before the
Child Psychologist.
Mr. Chander, the learned counsel for the petitioner, submits on
instructions, that the child was made available whenever the father asked.
Mr. Prosenjeet Banerjee, the learned counsel for the respondent contends
that the meetings never took place. Indeed this had led to the three separate
contempt petitions pending against the mother because of her recalcitrant
conduct.
The ourt would note that Child Psychologist has based her opinion
and advice on teh basis of cilinical observation and repeated interactions
with the parents and the child over a period of five months. It is her
opinion that the child‟s overindulgent association with the mother is
CM(M) No. 1425/2013 Page 32 of 36
injurious to his growth. This Court is of the view that that any factor or
influence which is injurious to the child his well-being and balanced
psychological development should be removed. The mother‟s care for the
child is stifling his emotional growth and her over protective concern is
inhibiting the development of his individuality and personality. It is
therefore necessary to immediately remove this unhealthy influence from
the child‟s world.
The respondent-father lives with his parents who are in their early
60s and are always available at home to take care of the child. Hence,
when he comes back from school, he would always have the care of his
grandparents. Mr. Prosenjeet Banerjee submits that children of Master
Siddhid‟s age will also be present at the father‟s house to keep him
company.
The Court is of the view that the father should have an important
role in the child‟s growth. It cannot be overlooked that the development
of the personality of any child, particularly that of a male child, is strongly
influenced by the presence of the child‟s father. Depriving the child of the
same would be injustice to the child.
CM(M) No. 1425/2013 Page 33 of 36
The Court refers with benefit to the observation in Paramjit Singh
Lamba vs. Smt. Prabjot Kaur, 111 (2014) DLT 117, wherein it was held
that "the parents would end up wasting the better part of their lives in
Court, and this should soon bring them to their senses. Their folly,
however, is no justification for not endeavouring to achieve the best for the
unfortunate child, who has no role or say in the spousal spat." This fact is
evident in the present case also and the child psychologist has duly warned
against its deleterious effect upon the psychology of Master Siddhid.
The Court further opined that "As has been observed, it is for the
mother to ensure that the daughter has a healthy interaction with her
father, lest an opinion be formed that she is deliberately turning the
daughter against her father. If such an opinion is formed by the Court,
there would be no option available to the Court but to award/transfer the
custody to the father in the hope that with the change the child would
adopt a more balanced and healthy attitude towards both her parents."
The Court has observed for the last 23 months that the efforts of the
mother have failed and there has been no healthy interaction with the father
and therefore keeping in view the facts of the case and the views of the
Child Psychologist, the interest of the child his interim custody is granted
CM(M) No. 1425/2013 Page 34 of 36
to the respondent-father, Mr. Manan Thapar with effect from 28.11.2015.
Mr. Sumit Chander, the learned counsel for the petitioner would seek some
time to prepare the child so that he can be weaned away from the custody
of the mother.
The mother shall have the right to visit the child as per the visitation
rights granted to the father by this Court‟s order dated 14.1.2015 i.e., six
times in a month for a duration three hours duration However, it would
always be open to the parties to enhance such meeting time at their mutual
convenience or should other exigencies arise. The mother shall prepare the
child for spending few days with the father in the first instance and shall
hand over the custody to the father in the presence of Ms. Veena Ralli, the
learned Senior Mediator on 28.11.2015 at 11.00 am. A copy of this order
be sent to Ms. Veena Ralli. The application stands disposed off in the
above terms.
Mr. Prosenjeet Banerjee, the learned counsel for the respondent
would state, upon instruction, that he would be agreeable to the child
spending the weekend, i.e., Friday evening till Sunday night with the
mother. He further submits that father shall take care of child‟s needs.
CM(M) No. 1425/2013 Page 35 of 36
Should the parties require any further notification of the schedule, they
would be free to approach the Family Court concerned.
The amounts which are being paid to the mother shall be continued
to be paid without prejudice to the rights of the parties. The holidays shall
be divided equally between the parties.
The petition and the application shall stand disposed off in the
above terms.
November, 23, 2015/aj/ak NAJMI WAZIRI, J.
CM(M) No. 1425/2013 Page 36 of 36
