Delhi District Court
) Amit Kumar (Husband) vs Charu Makin on 8 March, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Crl. Appeal No. 2 of 2016
I.D. No 02403R0023752016
1) Amit Kumar (Husband)
S/o Sh. Gauri Kant Jha,
R/o 684, Green View apartments,
Sector-19, Dwarka,
New Delhi-110075
2) Alok Jha (Brother in Law)
S/o Sh. Gauri Kant Jha,
R/o 684, Green View apartments,
Sector-19, Dwarka,
New Delhi-110075
3) Arti Jha (sister in law)
W/o Alok Jha,
R/o 684, Green View apartments,
Sector-19, Dwarka,
New Delhi-110075
...... Appellants
Versus
Charu Makin
D/o Sh. S.K. Makin
R/o F-92, 4th Floor,
Bali Nagar,
New Delhi-110015
......... Respondent
Date of institution of the case : 28.01.2016
Date when the case reserved for judgment : 22.02.2016
Date of announcement of judgment : 08.03.2016
JUDGMENT
1. This appeal has been filed against the impugned order dated 09.11.2015 vide which the Ld. Trial Court decided the applications Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 1/20 of the appellant no. 1 (original respondent no. 1 in the complaint) under section 25 of the Prevention of Women from Domestic Violence Act, 2005 (DV Act) and of the respondent under section 23 of the said Act. the appeal also impugns the order dt.02.01.2016 by which an application of the appellant no.1 under Section 25 of the DV Act for modification of the order dt.09.11.2015 was disposed off.
2. Brief facts leading to the filing of this appeal are that on 18.11.2014 an application under section 12 of DV Act was filed by the respondent herein. In her application, the respondent has stated that she had completed her graduation from college of Business Studies, had acquired the qualification of MBA from Indian Institute of Foreign Trade and LLB from Delhi University. In the year 2006 she was working as Manager with Citi Bank at Delhi where she met the appellant no. 1 through a common friend. At that time, the appellant no. 1 was working as a Senior Manager Max Newyork Life Insurance at Gurgaon. In February 2007, the respondent got a placement with ABN Amro at Dubai. Appellant no. 1 remained in touch with the respondent. In October 2007, the respondent purchased a flat No. 350, Sanskriti Apartment, Dwarka, New Delhi from her own savings. In January 2008, when the respondent was in India, appellant no. 1 proposed marriage to the respondent which she accepted and both married each other at Delhi on 08.03.2008.
3. The respondent has further stated in her complaint that in April 2008, after marriage, the appellant no. 1 and respondent went back to Dubai and started living as husband and wife. The respondent got pregnant and came back to India for delivery of the child. On 19.05.2009, baby Anshika was born from the wedlock of the parties.
Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 2/20 The respondent wanted to go back to Dubai to continue with her employment but it was alleged by appellant no. 1 that she had an affair in Dubai for which she wanted to go back. Appellant no. 1 influenced the mother of the respondent with the said allegations. The appellant no. 1 who was working in Dubai quit and joined AEGIS, Noida and did not want the respondent to go to Dubai with their daughter. The respondent resigned from the services of ABN Amro, Dubai and remained in Delhi to take care of her daughter.
4. The respondent has further stated in her complaint that in October 2009, the respondent and appellant no. 1 along with their daughter shifted to flat no. 350, Sanskriti Apartment, Dwarka, New Delhi and started residing there. On the pressure of appellant no. 1, respondent applied for a DDA flat at Dwarka from her own savings. The respondent got a home loan from Citi Bank and to repay the loan in April 2010, she joined Mirus Consultancy. Subsequently on 01.05.2011, the respondent joined as Vice President (Marketing) with M/s Navshiv Retail Pvt Ltd, New Delhi. She went on to become the Sales head for Delhi and Bangalore. She also got an opportunity to work with M/s Delmos Aviation Pvt Ltd since 2012.
5. The respondent has further stated in her complaint that the appellant no. 2 Alok Jha, elder brother of appellant no. 1 was unemployed and on the pressure exerted by the appellant no. 1, the respondent secured employment for the appellant no. 2 in her company. The attitude of appellant no. 2 towards the respondent was not good and he instigated appellant no. 1 against the respondent. Appellant no. 2 was an alcoholic and created disturbance in the office of the respondent where he was working. It is stated that in March 2013, the Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 3/20 appellant no.3 Arti Jha, wife of the appellant no. 2 joined her husband with their son at the flat in Dwarka with the plea that they were searching for alternative accommodation but they continued to reside there. It is stated that the Appellant no. 3 also instigated the appellant no. 1 against respondent. Due to the hostile atmosphere in her own flat at Dwarka, the respondent had to shift to her mother's house along with their daughter on 04.07.2013.
6. The respondent has further stated in her complaint that the appellant no. 1 did not bother about their daughter and did not even care to get her admitted in school. The respondent got her admitted in K R Mangalam school. In July 2013, respondent was out of Delhi on account of work and appellant no. 1 came to her mothers' house and started instigating her about the character of the respondent. Appellant no. 1 alleged to the mother of the respondent that respondent was having an affair with her boss in her office. As a result of the same, the mother of the respondent started pressurizing the respondent to quit her employment and to resume marital relationship with the appellant no. 1. The mother of the respondent even visited the office of the respondent and made a request for termination of her service. It is stated that in these circumstances, the respondent was forced to acquire separate accommodation at F-92, Bali Nagar, Delhi in November 2013 and she shifted to the said house along with her daughter. As the respondent was working, her daughter used to come to the house of respondent's mother after school and after coming from office the respondent would pick her.
7. The respondent has further stated in her complaint that the appellant no. 1 did not care about her and her daughter but he Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 4/20 insisted that child should spend weekends with him at his brother's flat at Dwarka to which she never objected. She allowed and appellant no. 1 continuous access to their daughter. However, the appellant no. 1 used to abuse the respondent in the presence of their daughter and used to tell her that the respondent was having an extra marital affair. On 11.10.2014 Mr Naveen Rao, CEO of the company of the respondent visited her house to collect a file of a court matter and the appellant no.1 came and threatened Mr Naveen Rao. On 13.10.2014 the appellant no. 1 entered the house of the respondent at Bali Nagar forcefully when the respondent was in her office to keep a watch on the activities of the persons visiting at the house of the respondent. On account of these acts, on 14.10.2014 the respondent was issued a show cause notice by the company where respondent was working as to why her service should not be terminated. The respondent pleaded and the manager of the company permitted her to work from her home due to which her salary was reduced by half.
8. The respondent has further stated in her complaint that in October 2013 the appellant no. 1 took away their daughter and did not permit the respondent to meet her daughter. On her request, she was permitted to meet her daughter for an hour on 18 th and 19th October 2014. It is stated that on 27.10.2014 the respondent initiated pre- litigation mediation before the Mediation Centre, High Court of Delhi where three pre-litigation meetings took place before the mediator Rajeev Aggarwal on 29.10.2014, 05.11.2014 and 11.11.2014 during which the appellant no. 1 agreed to let the custody of the daughter to remain with the respondent and assured not to disturb the custody. It is stated that on 12.11.2014, the appellant no. 1 sent the personal belongings of the daughter to the respondent.
Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 5/20
9. The respondent has further stated in her complaint that on 13.11.2014 the appellant no. 1 forcibly entered the house of the respondent in her absence, behaved badly and forced the maid to go out of the house. The appellant no. 1 without the consent of the respondent forcibly took their daughter along with him due to which she got shocked. After some time, appellant no. 1 came back and left their daughter at the house of the respondent and threatened the respondent that she should remain in her house to take care of her daughter failing which he would take her away. The respondent made a complaint on 14.11.2014 to the police for protection. She has stated that the minor child had been wrongly dragged into the matrimonial dispute.
10. In her application under section 12 of DV Act, the respondent prayed for grant of protection orders under section 18 for, among others, to restrain the appellant no. 1 from approaching or visiting the house of the respondent and / or the place of work of the respondent; to restrain the appellants from committing any act of domestic violence; to prohibit the appellants from having any access to the minor child; to restrain the appellants from removing the minor child from her custody.
11. By order dated 19.11.2014, the Ld. Trial Court called for a Domestic Incidence Report (DIR) and while doing so, restrained the appellant no.1 and 2 from committing any act of domestic violence qua the respondent and her daughter. The appellants no.1 and 2 were also restrained from visiting the premises of the respondent at F-92, Bali Nagar, New Delhi and from interfering with the custody of minor child.
Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 6/20
12. On 26.11.2014 the DIR was filed. The Ld. Trial Court deemed it fit to proceed only against the appellant no. 1, 2 and 3. The appellant no.1 was present in the Court and a consent order was recorded between the appellant no.1 and respondent herein to the effect that the respondent would drop her daughter at the premiss of her mother i.e. C-47, Bali Nagar, Delhi where the appellant no.1 would be entitled to meet his daughter for a period of 24 hours between Saturday 10am to Sunday 10am every week. It was specifically recorded that the respondent / complainant did not have any objection to the said arrangement. Statements of the appellant no.1 and the respondent were recorded to this effect.
13. On 22.12.2014, the appellant filed an application under Section 25 of the DV Act which was put for arguments on 07.01.2015. On 07.01.2015, the complainant filed an application for directions. On 05.02.2015, the appellant no.1 filed applications under Section 311 of the Cr.P.C. read with Section 145 of the Evidence Act, Section 34 of the Cr.P.C. and Section 91 of the Cr.P.C. The appellant no.1 also filed his reply to the main complaint and the applications. On 24.02.2015, time was sought by the parties to file replies to the pending applications.
14. The appellant no. in his reply to the application under Section 12 of the DV Act has stated, amongst others, that he met the respondent in August 2007 in New Delhi. Both of them fell in love and decided to get married. He has not denied the educational qualifications of the respondent. He has claimed that he himself to be a graduate from Delhi University in Mathematics and Economics. He himself was a Master Black Belt in Six Sigma from the Indian Statistical Institute, Bangalore, Lead Auditor for ISO and Assessor for Business Excellence Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 7/20 Model from CII. He has stated that when the respondent got employment with ABN Amro Bank in Dubai and shifted to Dubai. Appellant no. 1 applied and gained employment in Altayer LLC. He stated that they decided to get married before moving to Dubai and got married on 08.03.2008. He stated that the respondent had informed him that earlier she had been engaged with some person but the engagement was called off and there was some court case pending. After their marriage they were happy at Dubai and baby Anshika was born from the wedlock on 19.05.2009. He stated that when the respondent was in Dubai she used to have frequent fights with her colleagues and supervisors and when they would be out with friends, she would fight with other persons who did not agree with her point of view. The respondent continuously demonstrated rude behaviour with everyone around and without any reason used to pick up fights with neighbours, drivers, maids, petrol pump attendants and waiters at restaurants. Such behaviour of the respondent started affecting their marriage and respondent used to rebuke him in front of colleagues and friends causing him embarrassment.
15. The appellant no. 1 further averred in his reply that the respondent never performed any household chores during their entire stay in Dubai. They would eat outside mostly and when at home, they would have frozen meals. They used to travel to India every month and the mother of the respondent would pack a lot of food for them on the instructions of the respondent. Thereafter they moved back to India from Dubai as the respondent and appellant no. 1 wanted to bring their child up with Indian values and culture. It is stated that while the appellant no. 1 had officially resigned from services in Dubai, the respondent left her services without tendering any formal resignation.
Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 8/20
16. The appellant no. 1 further averred in his reply that after coming back to India, they started residing at C-47 Bali Nagar, New Delhi which belonged to the mother of the respondent. On account of the child the respondent took a sabbatical for a period of six months. The appellant no. 1 was earning Rs. 35 lakhs per annum in Dubai but in Delhi he got employment with a salary of Rs. 17 lakhs per annum but he did not complain once because the decision of moving back was taken for a better upbringing of their child. The appellant no. 1 contended that while working in Delhi and when respondent was at home, she used to call him repeatedly at work and if he did not reply she cast aspersions on his character. When he came back home the respondent would allege that he was having an affair. He contended that even in public the respondent used to cause him embarrassment. The appellant no. 1 had to live in the house of mother in law on the instructions of the respondent even though he did not want to do so.
17. Appellant no. 1 contended that he used to suggest to the respondent to move into their Flat at no. 350, Sanskriti Apartments, Dwarka which has been purchased by respondent prior to her marriage but she used to refuse. Appellant no. 1 claimed that he has spent Rs. 20 lakhs on the renovation of the said flat. Appellant no.1 stated that the respondent did not make any effort in the house of her mother and never entered the kitchen to cook any meals for their child. He contended that his family would often invite the respondent to visit them at his native place at Darbhanga, Bihar but she used to refuse from going on the ground that doing so would be beneath her dignity. It is stated that the respondent visited the Darbhanga only twice, once after the birth of Anshika in March 2010 and secondly in June 2012 for a Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 9/20 ceremony in the parental house of the appellant no. 1.
18. The appellant no. 1 further contended that the respondent had a habit of lying /exaggerating about her health conditions and even feigned to faint. The appellant no. 1 had got a call once in 2012 from Naveen Rao from Navshil Retail that respondent had fainted and had been taken to Fortis Hospital, Vasant Kunj but there the respondent did not undergo tests which were prescribed. It is contended that the appellant no. 1 and the respondent had purchased three flats after their marriage with major contributions being made by appellant no. 1 but all the properties were purchased in the name of the respondent at her insistence, one at Krishna Apra, Indirapuram in 2008 when both were in Dubai; second in March 2010 in Green view Apartments, Dwarka, New Delhi and third at Gulshan Vivante, Greater Noida Expressway on 17.08.2011. It is stated that on the instructions and compulsion of the respondent, all the flats were purchased in her name. The appellant no.1 agreed to the same as he also wanted to give her security and did wish to strain the marital relationship.
19. It was further contended by the appellant no.1 that in the year 2011, the respondent met an old colleague Naveen Rao who offered her employment in M/s. Navshiv Retail which she took up. She joined as Assistant Vice President, Marketing and was promoted quickly and out of turn. At first, appellant no. 1 thought that it was due to her hard work but then there was a sudden change in her attitude and behaviour and he felt as though something was amiss. He stated that in 2012 the business of appellant no. 2, brother of appellant no. 1 was not doing well and the respondent suggested that he should shift to Delhi and she would secure employment for him in her company. Appellant Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 10/20 no. 1 became happy about the attention paid by respondent to his family. The respondent insisted that appellant no. 2 move to Delhi and stay in their flat at Dwarka, New Delhi. Appellant no. 2 resided there for some time and then took up a flat in the same complex and moved there with his family. Appellant no. 1 has claimed that after his brother moved to Delhi, respondent started rebuking him and taunting him for having failed in business. Appellant no. 3 i.e. wife of appellant no. 2 had also moved to Delhi and these taunts increased. Appellant no. 3 was a home maker and respondent looked down upon her. Respondent would show off branded clothes and talk of foreign places that she had visited to make the appellant no. 3 feel inferior.
20. It is further contended by the appellant no. 1 that the respondent was appointed as a Director of M/s Navshiv Retail and in the year 2013-2014 she had joined the organization as Assistant Vice President of Marketing. Within two years she was named as Director. She claimed to be receiving salary of Rs. 65000/- per month but her lifestyle was much more lavish. The appellant no.1 contended that the respondent never stopped working except for six months after the birth of Anshika. She was highly qualified and earned more than enough to live a comfortable life. After marriage, the respondent used to insist that he deposit money every month in her account and he did so to keep her happy. But after she moved out he stopped doing so. The respondent has not celebrated any festival or birthdays with his family except Anshika's birthday.
21. In the reply the appellant no.1 has alleged that the respondent was having an affair with Mr. Naveen Rao, M/s Navshil Retail. I am not referring to the same in detailed as the same are the Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 11/20 matter of record save to say that the appellant no. 1 has linked the professional progress of respondent in the company of Naveen Rao with the allegations of her having an affair and indulgence on the adultery.
22. As per the Trial Court record on 19.03.2015, matter was adjourned to 15.05.2015. On 16.04.2015, the respondent no.1 filed an application under Section 23 of the DV Act. On 15.05.2015, parties filed replies to applications filed by each other. Submissions were addressed and the matter was adjourned for orders for 24.06.2015. In between on 23.05.2015, the complainant filed an application for renewal of passport of the minor child. On 19.06.2015, the Ld. Trial Court disposed off the applications for renewal of passport and under Section 91 of the Cr.P.C. of the respondent no.1.
23. On 09.11.2015, the Ld. Trial Court disposed off the applications filed under Section 23 of the DV Act by the complainant and under Section 25 of the DV Act by the appellant no.1 to set aside the ex-parte order dated 19.11.2014. By the said order, the Ld. Trial Court modified the earlier order dated 26.11.2014 and directed that the appellant no.1 would be entitled to meet his daughter between 5pm to 9pm on every Saturday and Sunday at a mutually decided venue.
24. Thereafter the appellant no.1 filed an application under Section 25 of the DV Act praying for modification of the order dated 09.11.2015 with the following prayers:-
"(a) Modify the order dated 9.11.2015 passed by this Hon'ble Court to the extent that respondent No.1 may be permitted to pick up the minor child on every Friday from the gate of the mother of the complainant at 8.00 P.M. and Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 12/20 drop her back at 6.00 P.M. on Sunday evening to take the minor child with him to his house in Dwarka and / or to other places of interest of minor child.
(b) Permit the respondent No.1 to take the minor child for 9 days out of the 18 days winter vacation out of Delhi for holidays to Kolkata at respondent No.1's sister's house from 1.1.2016 to 9.1.2016.
(c) Permit the respondent No.1 to communicate with the complainant over e-mail and SMS messages only with regard to well-being and issues relating the minor child.
(d) Permit the respondent No.1 to pick up the minor child on Wednesday i.e. on 30.12.2015 and to make the minor child stay overnight with him on 30 th and 31st night to celebrate the new year eve with the minor child.
(e) Clarify the following observation made in para 2 of the order dated 9.11.2015:
"The parties have admitted the factum of marriage between them. Considering the overall facts and circumstances of the case, the complainant has prima facie proved domestic violence committed against her by the respondents."
The above quoted part of the order be changed to that the complainant has prima facie raised certain allegations of domestic violence which are refuted by the respondent No.1 and the same would be decided at the stage of trial, however, interim orders are being passed on her complaint.
(f) Any other or such order as may be deemed fit in the larger interest of the child, in favour of the petitioner and against the respondent."
25. The respondent filed reply to the said application on 23.12.2015. Arguments on the application were addressed and the same was posted for orders for 02.01.2016. In the order sheet of 23.12.2015, a consent order was recorded on the statements of the appellant no.1 and the respondent to the effect that pending decision of Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 13/20 the said application, the visitation arrangement in respect of the minor child qua appellant no.1 was modified to 10am to 5pm for 26.12.2015, 27.12.2015 and 02.01.2016.
26. By the impugned order dated 02.01.2016, the Ld. Trial Court modified the previous order dated 09.11.2015 to the effect that the appellant no.1 would be entitled to meet his daughter between 10am to 5pm on every Saturday and Sunday of the week. The Ld. Trial Court declined the other prayers made in the said application.
27. As recorded above, this appeal has been filed by the appellants against the orders dated 09.11.2015 and 02.01.2016. Before this Court, Sh. Prashant Mendiratta, Ld. Counsel for the appellants has argued that the appellant no.1 is the father of the minor child. He has submitted that interest and welfare of the child requires that she be allowed to have equal access to both her parents. He submitted that since November, 2014, the appellant no.1 has been meeting his daughter wherever permitted. Appellant no.1 was earlier enjoying overnight visitation with his daughter at C-47, Bali Nagar, Delhi which belongs to mother-in-law of the appellant no.1 and mother of the respondent. The said visitation arrangement was modified to 5pm to 9pm at a mutually decided venue and the same now stands modified to 10am to 5pm on every Saturday and Sunday of each week. He submitted that the appellant no.1 should be permitted overnight visitation with his daughter.
28. During the course of arguments, Sh. Prashant Mendiratta, Ld. Counsel for the appellants furnished a host of photographs to show that the minor child was enjoying visitation with her father. It was Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 14/20 submitted that the appellant no.1 was residing at Dwarka with appellants no.2 and 3. The son of appellants no.2 and 3 was also residing with the appellants and the photographs showed that the minor child enjoyed the company of her first cousin. He submitted that as the minor child was enjoying the company of her first cousin, it would be in the interest and welfare of the minor child that she be permitted to reside overnight with her father on each weekend.
29. Sh. Prashant Mendiratta, Ld. Counsel for the appellants vehemently argued that the respondent was living in adultery with Naveen Rao. Counsel for the appellants produced before this Court a copy of a complaint under Section 200 of the Cr.P.C. which the appellant no.1 was proposing to file against Naveen Rao for having an adulterous relationship with the respondent. He submitted that the interest and welfare of the minor child would suffer tremendously if she was permitted to retain custody of the minor child since the child would be exposed to the adulterous relationship of her mother. The main contentions of the counsel for the appellants revolved around alleged adulterous relationship of the respondent. Counsel for the appellants placed reliance on "Child Access and Visitation Guidelines" drawn by M/s Child Rights Foundation which are stated to have been approved by the Hon'ble High Court of Bombay to support his contention that it is right of a child to have equal access to both his parents. He further relied on following case law:-
(i) Paul Mohinder Gahun vs. State of NCT of Delhi & Ors, 113 (2004) DLT 823;
(ii) Lekha vs. P. Anil Kumar, JT 2006 (10) SC 516;
(iii) Satish Mehra vs. Anita Mehra, 70 (1997) DLT 616;
(iv) Leeladhar Kachroo vs. Umang Bhat Kachroo, 121 (2005) DLT Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 15/20 218;
(v) Govind Singh Atwal vs. Mankirat Kaur Atwal, 116 (2005) DLT 259;
(vi) Indira Khurana vs. Prem Prakash, 60 (1995) DLT 633;
(vii) Sheila B. Das vs. P.R. Sugasree, AIR 2006 SC 1343;
(viii)Paramjit Sigh Lamba vs. Prabjot Kaur, AIR 2004 Delhi 318;
(ix) Kirtikumar Maheshankar Joshi vs. Pardipkumar Karunashanker Joshi, AIR 1992 SC 1447; and
(x) Jai Prakash Khadria and Anr. vs. Shyam Sunder Agarwalla, AIR 2000 SC 2172;
30. The respondent Mrs. Charu Makin argued in person. She basically submitted that she has never denied access to the appellant no.1 with respect to the minor child. She has submitted that the record of the Trial Court was clear in this regard. She submitted that she had objection to the prayer for overnight visitation on the ground that the appellants no.2 and 3 were using every possible opportunity along with the appellant no.1 to poison the mind of the minor child against her. She submitted that all the appellants were constantly attacking her character and alleging that she was having an extra marital relationship with Naveen Rao. She submitted that admittedly she was having much better educational qualifications than the appellant no.1 and was drawing a much higher salary than him. She submitted that although she had married the appellant no.1 after courtship, due to the differences in their lifestyles, qualifications and pay grade, gradually the appellant no.1 started developing an inferiority complex qua the respondent which has given rise to the present situation. She had submitted that she has gone out of her way to help the appellant no.2 to have a career by arranging employment for him in her company but the appellant no.2 was an alcoholic without any work ethic and has caused Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 16/20 problems for her in her office.
31. The respondent in person has submitted that the dispute between the parties is no longer restricted to the proceedings under the DV Act but have now spread with respect to properties. She submitted that the appellants are residing at 684, Green View apartments, Sector- 19, Dwarka, New Delhi as per the memo of appeal filed by them in this Court. She submitted that the said property belongs to her exclusively and the sale deed of the same was registered in her name alone. She submitted that the appellants are illegally residing in the said property without any right, title or interest. She submitted that in October 2015, the appellant no.1 has filed CS No.06 of 2015 before the Principal Judge, Family Courts, South-West, Dwarka, Delhi. In the said suit, the appellant no.1 has prayed for a decree of permanent injunction to restrain the respondent from dispossessing the appellant no.1 from the said flat i.e. 684, Green View apartments, Sector-19, Dwarka, New Delhi as well as flat No. 350, Sanskriti Apartment, Dwarka, New Delhi. She submitted that both these flats are exclusively owned by her and now the appellant no.1 in conspiracy and league with the appellants no.2 and 3 are trying to grab her properties. She submitted that the appellant no.1 takes her daughter to the said flats and poisons her tender mind qua the respondent by not only making allegations about her character but they are now also introducing the minor child to property disputes between the appellants and the respondent.
32. The respondent in person has filed copies of Civil Suit no. 06 of 2015. She has also placed on record copy of a Guardianship Petition bearing No. 35 of 2015 filed by the appellant no.1 against her in the Court of Principal Judge, Family Courts, Tis Hazari which was filed Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 17/20 on 05.06.2015 in which the appellant no.1 has prayed for an order for permanent and exclusive custody of the minor child.
33. The respondent has submitted that she had filed proceedings under the DV Act in November, 2014 and now the appellant no.1 is trying to corner her by filing false and frivolous cases to embroil her in multifarious and prolonged litigation. She has submitted that the appellant no.1 was never bothered about their minor child. If that it had been the case and if the appellant no.1 was convinced about the respondent leading an adulterous life, the appellant no.1 would have immediately taken steps to institute proceedings under law for exclusive custody of their minor child. She has submitted that now the appellants are interested in properties and they are using the proceedings of custody to squeeze a settlement out of the respondent. She has submitted that she did not want the appellant no.2 to have any access to the minor child.
34. I have heard, Ld. Counsel for the appellants and the respondent in person. I have gone through the record of the Trial Court.
35. The question which arises for consideration is whether any ground is made by the appellants to compel this Court to interfere with the impugned orders dated 09.11.2015 and 02.01.2016? Several case law have been cited by the Ld. Counsel for the appellants. It is settled law that in matters related to the custody of a minor child, his interest and welfare is of paramount consideration. This is the sole guiding factor for determination of any prayer made for grant of custody whether interim or permanent.
Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 18/20
36. Having gone through the record of this case and after considering the submissions made, it is apparent that there exists bitter disputes between the appellant no.1 and the respondent. Both have levelled allegations about the fidelity of each other. The respondent was the first to approach the Court in November, 2014 by filing the present proceedings under the DV Act. Six months thereafter i.e. in June, 2015, the appellant no.1 filed a petition for custody of the minor child and in October, 2015, he filed a suit relating to the above mentioned two properties. It is not in dispute that these two flats / properties had been registered exclusively in the name of the respondent but the appellant no.1 has contended that he had made contributions towards acquisition of the said properties. Whether making contributions for acquisition of any immovable property registered exclusively in the name of another person will enable the contributor to claim any title to such property is a question which will be considered and determined by the appropriate court where the dispute is pending. Counsel for the appellants during the course of the arguments had flashed copy of a complaint which the appellant no.1 intended to file against Naveen Rao on the allegations of him having an extra marital relationship with the respondent.
37. The above facts demonstrate that the disputes between the parties is no longer limited to custody of the minor child but has become multidimensional. In these circumstances, the question which arises is whether there would be any possibility of the child being subjected to exposure of these pending disputes between her parents? In the opinion of this Court, it would be the bounden duty of parents to insulate their child from such proceedings. However the fact is that these disputes do exist.
Amit Kumar vs. Charu Makin C.A. No. 2 of 2016 19/20
38. The Ld. Counsel for the appellants had submitted that the appellant no.1 desired overnight custody so that his daughter can spend some time only with him but also with her first cousin. The respondent in person had submitted that the appellants no.2 and 3 are residing with the appellant no.1 in a flat at Dwarka in respect of which the latter has now filed a civil suit. In such circumstances possibility of the appellants in exposing pendency of civil litigation as well as the proposed complaint cannot be ruled out. The same cannot be in the interest and welfare of the minor child.
39. For the reasons recorded above, I am of the opinion that visitation arrangement of 10am to 5am on every Saturday and Sunday of the week does not require any interference. The appeal of the appellants are dismissed. It is however clarified that if there are any change of circumstances during the pendency of the matter in the Trial Court, this order will not come in the way of the Trial Court in modifying the visitation arrangements as deemed fit for the interest and welfare of the minor child.
40. TCR along with copy of this judgment be sent back to the Ld. Trial Court. Appeal file consigned to the record room.
Announced in the open Court (REETESH SINGH)
on 8th March, 2016 ASJ-02/FTC, PHC/NDD
08.03.2016
Amit Kumar vs. Charu Makin
C.A. No. 2 of 2016 20/20