Himachal Pradesh High Court
Major Somnath Palde vs Pooja on 7 January, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 7th DAY OF JANUARY, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
.
CRIMINAL REVISION No.327 of 2019
Between:-
1. MAJOR SOMNATH PALDE,
AGE-38 YEARS, SON OF PUNJA PALDE
2. SUSHILA SANTU PALDE,
AGE-56 YEARS, WIFE OF SANTU PALDE,
BOTH RESIDENTS OF C-2, VAISHNAV
PUSHP, SANSARI, DEOLALI CAMP,
NASHIK-422 401 TAL. & DISTRICT
NASHIK, STATE-MAHARASHTRA.
r ......PETITIONERS
(BY MS. NEELAM W. BAKSHI AND
MS. ANITA JALOTA, ADVOCATES)
AND
POOJA KASHYAP,
WIFE OF MAJOR SOMNATH PALDE,
AGE-35 YEARS, C/O SMT. SANTOSH
KUMARI, WIFE OF SHRI JAMIR CHAND,
VILLAGE JAMLA (SALNOO), P.O.
SALNOO, TEHSIL SADAR, DISTRICT
BILASPUR, HIMACHAL PRADESH.
......RESPONDENT
(BY MR. ATUL JHINGAN, ADVOCATE)
Reserved on: 1.10.2021
Whether approved for reporting? Yes.
This Revision Petition coming on for pronouncement this
day, the Court passed the following:
ORDER
Petitioners have approached this Court, assailing judgment dated 19.3.2019, passed by learned Sessions Judge, Bilaspur, ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...2...
District Bilaspur, Himachal Pradesh, in Criminal Appeal No.8/10 of 2018, titled as Major Som Nath Palde and another vs. Pooja Kashyap, whereby order dated 8.6.2018, passed by learned .
Chief Judicial Magistrate, Bilaspur, in Case No.30/3 of 2016/15, titled as Pooja Kashyap vs. Major Shri Som Nath and another, filed by the respondent-wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "DV Act"), has been affirmed.
2. Petitioner No.1 is the husband of respondent, whereas petitioner No.2 is aunt (Tai) of petitioner No.1 and, for convenience, hereinafter petitioners shall also be referred to as husband and Tai, and respondent as wife.
3. Marriage of petitioner No.1-husband and respondent-wife was solemnized on 20.11.2012. For about one month, she stayed in her matrimonial home at Nasik and thereafter she accompanied her husband to his place of posting at Alwar. For untimely death of parents, husband has been brought up by his Tai, who is issueless. After some time, husband sent his wife to Nasik to stay with his Tai. During that stay, bitterness in the relations of husband and wife is stated to have been created on account of behaviour of Tai and mis-feeding by Tai to the husband. In these circumstances of strained relations, wife delivered a male child, named Adhrit, on 30.12.2013. Parental ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...3...
house of the wife is in Village Jaswani in District Bilaspur, Himachal Pradesh whereas husband is the permanent resident of Nasik, Maharashtra and serving in Indian Army as Major.
.
4. As per version of the wife, it was impossible to live with Tai for her behaviour and taunting for dowry etc., and her behavior created differences between the husband and wife and resultantly the husband stopped financial support to the wife and the husband had also become violent in behaviour and ultimately maternal uncle and mother of wife visited Nasik and in their presence also violence took place with the respondent-wife and ultimately she was brought to Bilaspur alongwith child as due to mental stress she was suffering psychotic problem.
5. Allegation of the husband is that the wife was suffering from psychotic problem prior to her marriage probably since 2010, but the fact of her ailment and treatment at IGMC, Shimla was not disclosed to him.
6. According to wife, during her treatment at IGMC, Shimla, husband came and took the child with him to the place of his posting at Kupwara and thereafter started making pressure upon her to agree for divorce and when she did not agree, he took the child from Kupwara to Nasik in order to mount pressure upon the wife and ultimately wife was forced to file complaint under the ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...4...
D.V. Act in the Court of Chief Judicial Magistrate, Bilaspur against her husband and Tai of husband.
7. In the complaint as well as her deposition in the Court, as .
PW-1, wife has narrated the incidents of violence, not extending financial support to her and behaviour of Tai as well as allegation of pressurizing her for divorce. She has admitted that she was under treatment for psychotic disorder with further qualification that it was caused because of mental stress on account of behaviour of petitioners.
8. Husband has also alleged occurrence of incident, on 9.4.2015, wherein wife had tried to jump from the moving car alongwith 14 months old child and also that on 21.1.2015 she became violent at home at Nasik and threw the kid off the bed and further that he had requested the parents of the wife to keep her with them as the old aged Tai was not in a position to take care of the wife when wife was violent.
9. On 21.4.2015, wife came to Bilaspur alongwith maternal uncle and mother for treatment as she was suffering from acute and transient psychotic disorder. According to husband, he visited to see his wife and son, but son was found to be kept with some relative of wife and he was very weak and not in good health and, therefore, he had decided to take the child with him and he had also asked his wife to accompany him, but the wife ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...5...
had refused on the ground that her medical review was scheduled on 4.6.2015 and, therefore, he took the child to Nasik on 26.5.2015 and started his medical treatment as the child was not .
eating well and was suffering from diarrhea, dehydration and stomach infection for the complete month and was not taken to the hospital by the relatives of the wife.
10. It is alleged by the petitioner-husband that the wife is not having a sound mind and thus is not in a position to take care of the child.
11. Husband and wife both have lodged FIRs against each other. Husband had lodged zero FIR against the wife and her relatives whereas wife had also lodged FIR No.651 and 652 of 2015 at Nasik.
12. Perusal of record indicates that wife submitted an application/ complaint under Section 12 of the D.V. Act to the Child Development and Project Officer (CDPO), Bilaspur for taking action against the petitioners, by narrating cause of action for that in the said application. She prayed for passing of protection order under Section 18, residence order under Section 19, monetary relief under Section 20, custody order under Section 21, compensation order under Section 22 and for interim order under Section 23 of the D.V. Act. In the complaint, she specifically prayed for custody of her 18 months old child. Matter, ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...6...
after complying with the procedure prescribed, was referred to the Court of learned Chief Judicial Magistrate, Bilaspur.
13. During pendency of the petition, a separate application .
under Section 23 of the D.V. Act being Cr.MA No.79/4 of 2016 was filed for passing order regarding custody of the minor child Adhrit. After adjudication of this application, learned Chief Judicial Magistrate, vide order dated 3.5.2016, had concluded that prima facie domestic violence had been established on record, as the child was taken away from the mother after arising of dispute between the husband and wife and, therefore, also keeping in view the tender age of the child, mother was considered most suitable person to look after him and custody of child was directed to be handed over to the wife within two weeks from the passing of the order, reserving rights of the husband, being father, of visitation in accordance with Access & Custody Guidelines and Parenting Plan drafted by Child Rights Visitation NGO, approved by High Court of Himachal Pradesh in the year 2014 and communicated and circulated to all the District and Sessions Judges to enforce the same in their respective Divisions. In another application Cr.MA No.80/4 of 2016, filed by respondent-wife under Section 23 of the D.V. Act, learned Chief Judicial Magistrate, Bilaspur had also awarded interim ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...7...
maintenance to the wife @ Rs.20,000/- per month payable by the husband.
14. Interim custody order was assailed by the husband by filing .
Criminal Revision No.9/10 of 2016. Criminal Revision No.10/10 of 2016 was also preferred by the husband against interim maintenance amount awarded in favour of the wife. Both Revision Petitions were dismissed by learned Sessions Judge, Bilaspur vide even dated separate orders passed on 8.7.2016.
15. The petitioners had approached this Court by filing Cr.MMO No.228 of 2016 which was decided on 31.10.2017, setting aside the impugned orders passed by learned Chief Judicial Magistrate, Bilaspur granting interim custody of child and the issue was remanded to the Magistrate concerned to adjudicate it after enabling the wife to prove the requisite certificate and also enabling the husband to adduce rebuttal evidence thereto within three months from 23.11.2017.
16. In the meanwhile, as there was no stay against the order dated 3.5.2016 and the child was not handed over by the husband within two weeks from the passing of the said order, brother and other relatives of wife visited Nasik on 26.5.2016 and, in execution of the order passed by the Court, had brought the child to Bilaspur with the help of Police and since then the child remained in the custody of mother.
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17. After pronouncement of this Court, in Cr.MMO No.228 of 2016, issue of custody had been dealt with by learned Magistrate in final order dated 8.6.2018 passed in the main case No.30/3 of .
2016/2015, after appreciating the evidence on record. This order was assailed by the petitioner by filing Criminal Appeal No.8/10 of 2018, which was dismissed on 19.3.2019. Wife had also filed Criminal Appeal No.9/10 of 2018, titled Pooja Kashyap vs. Major Somnath Palde for enhancement of maintenance amount granted by the Magistrate. The said appeal was also dismissed on 19.3.2019. Wife had preferred Cr.MMO No.804/2019, which was dismissed as withdrawn on 24.4.2021 for availing appropriate remedy for enhancement of maintenance amount.
18. Vide impugned order dated 8.6.2018, passed by the Magistrate, following reliefs have been given to the wife:-
"i) Petitioner is held entitled for maintenance @ Rs.14,000/-
per month from respondent No.1 from the date of decision of the petition.
ii) Petitioner is held entitled for residence i.e. a separate room, kitchen and toilet in her shared household, in case respondent No.1 is not able to provide the same in the shared household, he is directed to pay rent of similar accommodation in the vicinity of his house.
iii) Respondents are restrained from committing any act of domestic violence against the petitioner. Respondents are further restrained from making communication in any form with the petitioner including personal, oral or written or electronic or telephonic contact causing mental distress or physical violence to the petitioner or her relatives in any manner.
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iv) Petitioner is held entitled for the interim custody of the child Adhrit.
v) Petitioner is held entitled for the compensation at .
Rs.2,00,000/- from the respondent No.1 for monetary loss suffered by her in bringing her child and emotional distress."
19. During hearing, learned counsel for the petitioners has addressed arguments qua relief Nos.(iv) and (v) only, probably for the reason that interim maintenance awarded in favour of the wife was Rs.20,000/-, whereas after final adjudication, maintenance of Rs.14,000/- per month has been awarded and as the wife is residing with her maternal aunt (Massi) and looking after her child who is studying in DAV School, Barmana in District Bilaspur, whereas relief No.(ii) entitles the wife to accommodation either in the house of the petitioners i.e. at Nasik or similar accommodation in the vicinity thereof, and in relief No.(iii), petitioners have been restrained from committing any act of domestic violence against the respondent-wife in any manner. As the wife is residing in Bilaspur, reliefs No.(ii) and (iii) granted in her faovur, may not be causing any problem to the petitioners or petitioners may be ready for providing such accommodation to the respondent, if so desired by her. However, case has been argued vehemently for custody of the child and for reduction of compensation as ordered in reliefs No.(iv) and (v).
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20. It has been contended on behalf of the petitioners that in Cr.MMO No.228 of 2016, case was remanded back for proving requisite certificate by the wife to prove her ability to look after .
herself and the child, but the wife did not examine the Doctors of IGMC, Shimla who treated her, but examined one Doctor, Ramesh Kumar as PW-2, serving in Government Medical College, Mandi at Nerchowk to prove certificates (Ex.CW1/J and Ex.PW2/A) to establish her capability to take care of the child.
21. According to the petitioners, the custody of child deserves to be handed over to the husband/father particularly for the reason that even PW-2 Dr. Ramesh Kumar has also admitted it to be correct that medical condition of the wife is acute and transient psychotic disorder and under these symptoms, patient cannot be left alone, as such person can cause hurt to anyone and there is no permanent cure to this condition. It has been further submitted that no document to prove the treatment and no record of illness due to harassment has been placed on record and, therefore, the Courts below have committed material irregularity and illegality by taking into consideration the medical certificate issued by the Doctor who had not treated her at any point of time.
22. The next point urged on behalf of the husband is that the wife is not capable of taking care of the child not only for mental disorder, but also for the reason that she has no independent ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...11...
income and residence, is not residing with her parents but with some relative as parasite and keeping the child with someone else and for expenditure as well as for looking after the child she .
is totally depending upon the petitioner-husband and, therefore, it would be better for the future of the child that father is permitted to have the custody of the child as father would be able to take care of the child better than mother and to arrange his studies in better military school(s).
23. It has also been submitted that despite passing of order of visitation rights by the Magistrate, respondent-wife had been changing the address frequently without informing the petitioners, as initially she was residing with her parents, thereafter at Ghumarwin and thereafter shifted to Salanoo (Jamla) without any information and earlier the child was admitted in newly opened school and thereafter shifted to DAV School at Barmana in Bilaspur and these facts were never informed to petitioners and petitioners faced great difficulties to find out respondent and child and for such behaviour also the custody of the child deserves to be handed over to the father.
24. It has also been pointed out that respondent-wife, for her conduct, is not very keen for future of the child or his upbringing in better way, for the reasons that she filed an application for custody of the child after 8-9 months of filing of the complaint ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...12...
under D.V. Act and for 9 months she did not express any love or affection for the child and, for counsel's advice, she filed application for strengthening her case. It has also been .
contended that custody orders passed by the Magistrate under D.V. Act are without jurisdiction as custody of the child is to be governed by the Guardians and Wards Act, 1890.
25. Learned counsel for the respondent-wife has contended that requisite certificate issued by the Doctor, declaring the wife competent, healthy and capable of taking care of the child, has been proved on record and keeping in view the tender age of the child and the Guidelines referred (supra), mother is the best person to handover custody of the child and the Courts below have appreciated the material on record in right perspective and there is no error apparent on the record, inviting interference of this Court under revisional jurisdiction and further that the respondent-wife had also attended the hearings before the Co-
ordinate Benches of this Court during earlier round of litigation and she had also participated in the proceedings of mediation and at no point of time, it was ever noticed or recorded by the Court or the Mediator that she, for her mental illness, was and/or is not capable of taking care of the child and further that the respondent-wife has produced the evidence on record to prove soundness of her mind, and the onus to rebut the same was ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...13...
upon the husband, but he has failed to produce any evidence contradicting the version of the Doctor that the wife is capable of taking care of the child and, therefore, prayer for dismissal of the .
petition has been made.
26. Statement of PW-2 Dr. Ramesh Kumar is not to be read by picking up one line or two lines randomly, but is to be appreciated as a whole. Though he has admitted that mental history of the patient was not mentioned in the certificate issued by him and he was not able to say that for how long the petitioner was facing the problem, but he categorically stated that the wife was not having any feature of mental disorder and was fit to look after her child with categorical statement that wife was examined on the basis of her application and further that though there is no permanent cure to the condition, but with medicines the patient can become totally symptom free depending upon person to person.
Moreover, the Doctor was examined in March 2018, we are in January, 2022 and till date no such psychotic disorder has been brought on record by the husband. Otherwise also, husband-
father is serving in Army having no parents and relatives, except his more than 60 years old Tai and, therefore, keeping in view the age of the child, the best person for the custody of the child was the mother, more particularly for the opinion of the Doctor expressed in the certificate issued by him. Under these ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...14...
circumstances, I do not find any logic to interfere in the finding of facts returned by the Courts below on this count.
27. Learned counsel for the husband has also referred .
documents (Ex.RW1/B, Ex.RW1/C and Ex.RW1/E) to substantiate the fact that when husband had taken the child from Bilaspur to Kupwara and thereafter to Nasik, the child was suffering from serious ailment. At that time, wife-mother was admitted in the hospital and the child was kept with her aunt and being a father, husband was also responsible to look after the child and, therefore, for treatment of the child it was expected of the father to take all necessary steps, but at the same time when he was directed by the Court to handover the child to wife-mother, he should have handed over the child to the mother, moreover when the Court had reserved his right to claim the custody on valid grounds but he did not do so. Otherwise also, at the time of adjudication of custody, the documents related to treatment of the child (Ex.RW1/B, Ex.RW1/C and Ex.RW1/E), were/are not relevant.
28. Section 21 of the D.V. Act empowers the Magistrate, at any stage of hearing of the application for protection order or for any other relief under this Act, to grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf, but specifying the arrangements for visit ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...15...
of such child or children by the 'respondent' as defined under the D.V. Act.
29. It is admitted fact that the child was in the custody of .
mother in her parental house at Bilaspur, who was taken away by the husband. Perusal of complaint confirms that a prayer was made in the complaint by the wife for custody of her child.
Therefore, the Magistrate was having jurisdiction to pass an order with respect to custody of the child. However, such order passed by the Magistrate shall amount to handing over the temporary custody of the child as final adjudication of the custody is to be done by the Family Court/ competent Court under the Guardians and Wards Act, 1890 and as the last residence of the child, from where custody of the child was taken by the husband is Bilaspur, H.P., therefore, the appropriate Family Court/competent Court for adjudication of the claim of custody, if any preferred, would be the Court having jurisdiction at Bilaspur, H.P. under the Guardians and Wards Act, 1890 especially under Section 25 thereof. The wife had made a prayer for custody of the child in the original complaint and application filed under Section 23 of the D.V. Act for passing interim order with respect to custody of child was in addition thereto, therefore, plea of husband that the mother of the child (wife) did not bother for 8-9 months for custody of the child ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...16...
and filed the application on the basis of the advice of the concerned counsel, is contrary to record and thus not tenable.
30. During pendency of the petition, petitioner No.1 has filed an .
application under Section 391 of the Code of Criminal Procedure for placing on record the recording of telephonic talks between husband and wife recorded by the husband. The said application has been opposed on behalf of the wife on the ground that in present Revision Petition, Section 391 of the Code of Criminal Procedure is not applicable and further that validity of the impugned order has to be adjudged on the basis of the material placed before the Court passing the said order, but without taking into consideration any new material.
31. It is another issue that as to whether recording of conversation with wife without informing her, amounting to infringement of her right to privacy, would be a valid piece of evidence to adjudicate the dispute between husband and wife.
Be that as it may, at this stage, it would be appropriate to refer provisions of Section 25 of the D.V. Act, which provide alteration, modification or revocation of any order made under D.V. Act by the Magistrate on satisfaction that there is a change in the circumstances requiring alteration, modification, or revocation of such order. Therefore, for any new material or change in the circumstance, petitioners are having remedy to approach the ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...17...
concerned Magistrate/Court under Section 25 of the D.V. Act.
Further, order of custody passed in the present case is an order of granting temporary custody of the child as Magistrate under the .
D.V. Act is empowered only to grant temporary custody of the child. So far as the final adjudication with respect to custody of child is concerned, that is to be decided by the competent Court, presently the Family Courts at Bilaspur under the appropriate petition filed by either party invoking the provisions of the Guardians and Wards Act, 1890. Therefore, the husband is also at liberty to avail remedy by filing appropriate petition before the Family Court, Bilaspur having jurisdiction to adjudicate the issue of custody of child under the Guardians and Wards Act, 1890.
32. The interim custody order was passed in the year 2016 and at that time, visitation rights of the parents were considered by way of relevant provisions keeping in view the age of the child at that time. Now, we are in 2022 and as of now, the child is of 8 years of age and, therefore, visitation rights of the parents are to be governed by the relevant guidelines applicable on the basis of present age of the child and for that purpose, appropriate Court would be the Family Court of District Bilaspur, Himachal Pradesh or any other competent Court having jurisdiction to adjudicate the matter under Guardianship and Wards Act, 1890 in District Bilaspur, Himachal Pradesh.
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33. It would be apt to refer Child Access and Custody Guidelines and Parenting Plan, drafted by Child Rights Foundation NGO, approved by this High Court in the year 2014 .
and communicated to all District and Sessions Judges to enforce these recommendations in their respective divisions, wherein in Clause 31, it has been observed as under:-
"OVER NIGHT ACCESS: Court's are under obligation to consider the child spending equal time, or substantial and significant time, with each parent. In making a parenting order the court 'must consider' making orders that the child spend equal time, or if not equal then substantial and significant time, with each parent. 'Substantial and significant time' is defined to mean, essentially, weekdays and overnight weekends and holidays, times that allow the parent to be involved in the child's daily routine as well as occasions and events that are of particular significance to the child or the parent child to maintain or consolidate a secure attachment with a parent whose behavior is oriented only to 'visiting' rather than 'care-giving'. Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, divorced, have never married or have never lived together; and Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other immediate family members & relatives); and Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Over Night Access at home of the non-custodial parent should be encouraged at an early stage so that the children have a close and continuing relationship and get the love, affection of not only parents but also of grandparents and other immediate family members like uncle, aunties, cousins etc. The healthy emotional development of children depends upon their early experience of a continuous, emotionally available care-giving relationship, through which they are able to form an organized attachment, and to develop their human capacities for thought and relationships essentially.::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019
...19...
Children have their right to childhood of hopeful existence free of exploitations, neglect. Children need constant support system as well as love, hope and encouragement, all these things and more are required in order to experience childhood to the fullest and to eventually develop into a healthy, capable adult for the .
full and hormonal development of his or her personality children should grow up in a family environment in an atmosphere of happiness, love and understanding which is very important for their overall growth and well being. The children should be fully prepared to live life in society, in the spirit, dignity tolerance, freedom, equality and solidarity. However, young children are subjected to exploitation especially in a broken marriage where the court has to intervene to protect the rights of the child. Children have to be ensured that their right to parental access, right to quality of life, right to be cared for, and right to freedom of expression is not compromised and children get love and affection from both parents and grandparents and immediate family members. They should have a sense of belonging to a healthy family environment maintaining their heritage so that the genealogy of the child is not lost after attaining adulthood and they are able to be linked with their ancestors. Overnight access should, therefore, be encouraged at an early stage."
34. Clause 30 of these Guidelines also provides that excess schedule for access for the child of parent can vary as per convenience of the parties by presenting a petition before the Court. Chapter 3 provides local guidelines with respect to parties residing within 200 driving kilometers of each other, part D whereof contains provision with respect to final visitation regarding children of 36 months and older. It provides that non-custodial parent shall be entitled for weekend visitation on every weekend, weekday visitation, right of to spend at least four hours on the holiday or festival day and festivals weekend overnight access, right to spend 50% of each vacation during long vacations like Diwali, Christmas, summer, winter etc. Chapter 4 of Guidelines contains Non-Local Guidelines with respect to parties, not residing within 200 driving kilometers of each other. It also provides at ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...20...
least one weekend vacation on every week, right to spend holidays, celebrate religious holiday, right to spend 50% of long vacation such as Diwali, Christmas and summer and winter. Paramount consideration in .
all eventualities must be welfare of the child.
35. As stated in the Guidelines quoted supra, the Supreme Court, in a case titled Anuj Chaturvedi vs. Jyoti, Special Leave Petition (C) No(s) 6303/2017, decided on 4.1.2019 has also observed that visiting rights are to be fixed in such a manner that child gets to know and love his father. The order reads as under:-
"We are not inclined to interfere in the order granting custody of the child to the mother. The special leave petition is dismissed according. However, we give liberty to the petitioner to approach the Family Court for enactment of his visitation rights and we direct the Family Court to ensure that visitation rights are fixed in such a manner that the child gets to know and love his father. A child has a right to the affection of both his parents and the Family Court shall ensure that visitation rights are granted in such a manner. The Family Court may also make suitable arrangements for visitation/interim custody during vacation periods. Obviously the Family Court has to keep the interest of the child at the foremost. Pending application(s), if any, stands disposed of."
36. The Supreme Court, in another case titled Tanuj Dhawan Vs. Court in its own Motion, Writ Petition (Civil) Diary No. 11058 of 2020 decided on 30.4.2020, has suggested that where because of lockdown children are unable to interact with their parents, despite existence of visiting rights for the said purpose, electronic contact, instead of physical visits, can be substituted in such times. It has further been observed that in absence of ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...21...
mutually acceptable arrangement in this behalf, aggrieved party can approach the family Court.
37. Petitioner has a remedy to approach appropriate Court, as .
discussed supra, for redressal of his grievance related to visitation rights and such Court shall certainly address the issue in consonance with provisions of law applicable and aforesaid Guidelines.
38. Award of compensation of Rs.2,00,000/- has been assailed on the ground that after passing of custody order on 3.5.2016, husband had approached the learned Sessions Judge by filing an appeal and thereafter the High Court by filing Cr.MMO which was allowed by remanding the case to the trial Court to decide afresh and, though no stay was granted in favour of the husband, however the High Court had passed the order in his favour accepting his plea assailing order dated 3.5.2016, whereby custody of the child was ordered to be handed over to the wife. It is claimed by the petitioners that without waiting for the outcome of the appeal and the Revision Petition, wife had taken the steps to execute the order dated 3.5.2016 and taken forcible custody of the child on 26.5.2016 and for that she was not entitled for any compensation.
39. It is true that order dated 3.5.2016 was set aside by this Court but as there was no stay against the said order, it was ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...22...
expected from the husband to obey the said order whereby he was directed to handover custody of child within two weeks and, in any case, transfer of custody of child would have been subject .
to final order to be passed by the competent Court in the appeal or revision preferred by the petitioners. At this stage, it is also noticeable that Rs.2,00,000/- compensation has not been awarded only on account of expenditure incurred by the wife to get custody of child by going to Nasik, but the Court has recorded blatant disregard of the directions of the Court by husband resulting into monetary loss, emotions and stress to the wife on account of conduct of the husband. However, it would be in the interest of justice that Rs.1,00,000/-, out of this compensation, is invested in the shape of FDR in favour of child till attaining age of 18 years by him and rest is paid to the wife. Thus, ordered accordingly.
40. No other issue raised or point urged.
41. There is no jurisdictional error or error of law in the impugned orders/judgment and there are concurrent findings with respect to the facts on the analysis of the evidence adduced by the parties. It is well settled that in exercise of revisional jurisdiction, in absence of perversity, concurrent factual findings, should not be upset by re-analyzing and re-interpreting the evidence on record. For the aforesaid discussions and the ::: Downloaded on - 31/01/2022 23:35:17 :::CIS CR.R No.327/2019 ...23...
reasons assigned in the impugned orders/judgment, I do not find any perversity in the same.
Petition is disposed of in aforesaid terms with pending .
application(s).
( Vivek Singh Thakur)
Judge
January 7, 2022 (ks)
r to
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