Manipur High Court
Inaobi Singh Maibam vs Huidrom Omila Devi on 19 May, 2022
Author: Sanjay Kumar
Bench: Sanjay Kumar
KABORA Digitally signed
MBAM by KABORAMBAM
IN THE HIGH COURT OF MANIPUR
SANDEE SANDEEP SINGH
Date: 2022.05.19 AT IMPHAL
P SINGH 14:34:13 +05'30'
MC (Crl. Rev. P.) No. 10 of 2019
[Ref: Cril. Rev. P. No. 4 of 2017]
Inaobi Singh Maibam, aged about 43 years, s/o M. Yaima
Singh, working as Mobile Scientific Officer, Forensic Science
Laboratory, Pangei, Imphal East District, P.S. Lamlai, and
having the permanent address at Tentha Khunjao Makha, P.O.
Wangjing, P.S. Khongjom, Thoubal District, Manipur-795148
Applicant
-Versus-
Huidrom Omila Devi, aged about 41 years, d/o H. Budhi
Singh, resident of Khoyathong Pukhri Achouba Mapal,
Nagamapal Road, Imphal West District, Manipur.
... Respondent
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
For the applicant : O. Kiranjit, Advocate
For the respondent : Dr. RK Deepak, Advocate
Date of reserving of Order : 16.05.2022
Date of delivery of Order : 19.05.2022
ORDER
Sanjay Kumar (C.J.):
[1] Having secured a decree of divorce by mutual consent, the estranged couple are still at loggerheads over the modalities of the father's visitation rights. Born on 02.10.2013, their son, Thoingamba Maibam @ Mangal Maibam @ Abungo Maibam, is yet to complete 9 years of age. MC (Cril. Rev.P. No. 10 of 2019. Page 1 The applicant-father's right to visit his son stands settled by the order dated 04.09.2017 passed by the Supreme Court in Criminal Appeal No. 1568 of 2017. Therein, the Supreme Court observed that it was indeed a sorry state of affairs that the father had not been able to visit the child during the preceding three years and directed the respondent-mother to co-operate fully to see that the child gets to see his father on every 2nd and 4th Sunday from 10:30 am to 2:30 pm. It was further observed that if there was any problem in doing so, it would be open to the father to approach the Supreme Court immediately. The appeal was accordingly disposed restoring the judgment dated 05.12.2016. This judgment was passed by the learned Judicial Magistrate First Class, Imphal East (for short, 'JMFC'), in Cril. Misc. (DV) Case No. 5 of 2015 {Ref: Cril (C) Case No. 162 of 2014/DV Act 14/2014}. By the said judgment, the learned JMFC had permitted the father to visit the child twice a month, i.e., on the 2nd and 4th Sunday of every month, from 10:30 am to 2:30 pm. A person authorized by the mother was permitted to be present during the visit and the venue was left to the convenience and consensus of the parties. In the event they failed to decide upon the location, the learned JMFC directed that the visit should take place at the Cheirap Court Complex. [2] Thereafter, the father approached the Supreme Court by way of M.A. No. 620 of 2018 (IA No. 28980 of 2018) in Criminal Appeal No. 1568 of 2017, seeking modification of the order dated 04.09.2017 passed by it earlier. However, this application was dismissed as withdrawn on 21.03.2018 but the Supreme Court gave liberty to the father to move the High Court for appropriate directions.
MC (Cril. Rev.P. No. 10 of 2019. Page 2 [3] Instead of approaching this Court, the father then filed Cril. Misc. (DV) Case No. 7 of 2018 [Ref: Cril. (C) No. 162/2014 DV 14/14] before the learned JMFC seeking alteration and modification of the earlier order dated 05.12.2016 passed in Cril. Misc. (DV) Case No. 5 of 2015. The alteration that he sought was that a representative of the mother should not be permitted to be present during his visit and to allow him to take the child for outings and to buy clothes during the visitation hours.
[4] This miscellaneous case was disposed of by the learned JMFC on 03.11.2018, permitting the father to visit the child on the 2nd and 4th Sunday of every month from 10:30 am to 2:30 pm at the Legal Aid Clinic, Cheirap Court Complex, in the presence of para-legal volunteers. The learned JMFC barred the entry of the representatives of the mother inside the visitation room and directed that any person accompanying either the mother or the father should remain outside the building and should not be present either at the door or inside the Court Building at Cheirap, where the Legal Aid Clinic was located. The father was however not permitted to take the child outside or beyond the Legal Aid Clinic room.
[5] This order was subjected to challenge by the mother in Cril. Appeal Case No. 3 of 2018 before the learned Sessions Judge, Imphal East. The appeal was disposed of, vide order dated 22.11.2018, altering the order of the learned JMFC only to the extent of barring the entry of the representatives of the mother inside the visitation room. The learned Sessions Judge was of the opinion that doing so would be against the spirit of the order of the Supreme Court and accordingly set aside the said restriction. MC (Cril. Rev.P. No. 10 of 2019. Page 3 [6] Aggrieved thereby, the father filed Cril. Revision Petition No. 38 of 2018 before this Court. However, the said revision was dismissed as withdrawn by a learned Judge of this Court, giving liberty to the father to file an appropriate application in Cril. Rev. Pet. No. 4 of 2017. Perusal of the said order reflects that the learned Judge was of the opinion that the father had no right to file an application for modification before the learned JMFC as the Supreme Court had given him liberty to approach the High Court and not the learned JMFC. However, the learned Judge did not invalidate either the order dated 03.11.2018 passed by the learned JMFC or the appellate order dated 22.11.2018 passed by the learned Sessions Judge. Those orders have therefore attained finality.
[7] While so, taking advantage of the liberty granted by the learned Judge while permitting withdrawal of Cril. Revision Petition No. 38 of 2018, the father filed the present miscellaneous case. His prayer is to modify the judgment dated 05.12.2016 passed by the learned JMFC, by disallowing the mother or any of her representatives from being present during the visitation hours and to allow him to meet his son in their absence. He also prayed for liberty to take out his son for buying clothes, toys, etc., during that time and to prohibit any form of recording/photography by the mother or her representatives during the visitation.
[8] Heard Mr. O. Kiranjit, learned counsel for the applicant-father; and Dr. RK Deepak, learned counsel for the respondent-mother. [9] At the outset, it may be noted that the right of the father to visit and spend time that with his young son stands protected by the order of the MC (Cril. Rev.P. No. 10 of 2019. Page 4 Supreme Court. It is only in respect of how such visitation rights are to be exercised that there is controversy. It appears that the father and son have not had an effective visit for a long time now, be it for whatever reasons. [10] Though the earlier orders passed by the learned JMFC and the learned Sessions Judge, Imphal East, modifying the judgment dated 05.12.2016 have attained finality, the fact remains that liberty was given to the father by the Supreme Court and then, this Court, to move an application for modification in Cril. Rev. Pet. No. 4 of 2017. That apart, this Court would always be entitled to exercise parens patriae jurisdiction in relation to children residing within the State. Further, what is of paramount importance in a matter of this nature is essentially the welfare and interest of the child and not technicalities. This Court interacted with the child separately on 26.04.2022. As he was not comfortable with either Hindi or English, Ms. Pinky Heigrujam, Law Assistant, attached to this Court, was asked to translate. This Court found the child to be unfamiliar with his father and he showed clear signs of tutoring to speak against him. He did not even respond to his father's overtures, when he was called in. In any event, as the Supreme Court already protected the father's right to visit the child, the reluctance of the child cannot be a ground to bar such visitation rights at this stage. All the more so, considering his tender age and the need for parental love and guidance from both parents. [11] It appears that, during the visitations earlier, the maternal grandmother of the child used to accompany him but her presence, as per the para-legal volunteers proved to be counter-productive. Though allegations were leveled against the said para-legal volunteers, this Court is not inclined to MC (Cril. Rev.P. No. 10 of 2019. Page 5 accept that they would have any personal prejudice or bias in the matter, being complete strangers to both parties. At this stage, when the child is clearly not at ease in the company of his father, it would not be appropriate to allow the father to be with or take the child out on his own. [12] As the rigours of the pandemic fortunately seem to have passed, it would be appropriate that the father is permitted to meet the child and spend time with him, as directed earlier, so as to form and strengthen a bond with him. The visitation rights of the father shall be implemented in the following terms on a tentative basis and until further orders: -
(i) The father is permitted to visit the child on the 2nd and 4th Sunday of every month from 10:30 am to 2:30 pm.
(ii) The venue shall be the Legal Aid Clinic or any other suitable premises in the Cheirap Court complex.
(iii) The father shall come to the venue alone and shall not be accompanied by any relation or friend.
(iv) The child shall be brought to the venue by any relation of the mother, except the maternal grandmother. It appears that apart from her father, she has 3 sisters and 2 brothers.
However, her representative/relation shall not enter into the room where the right of visitation is exercised by the father and shall remain outside during such time.
(v) The father shall spend time with the child within the room in the presence of 2 para-legal volunteers, to be nominated by MC (Cril. Rev.P. No. 10 of 2019. Page 6 the Member Secretary, Manipur State Legal Services Authority. Facility shall be provided by the State/District Legal Services Authority to enable the volunteers to record the visitation and such recordings shall be retained either on a pen drive/hard drive/compact disk. The expenses to be incurred in this regard shall be borne by the father.
(vi) If there are any untoward incidents or any other incident worthy of being taken note of, the para-legal volunteers shall submit a report directly to the Registrar General of this Court.
(vii) The father may present clothes and toys to the child during the visitation hours and shall endeavour to build a bond/ relationship with the child.
The above conditions of visitation are fixed on a tentative basis and would be subject to further modification, based on circumstances.
Registry is directed to communicate a copy of this order to the Member Secretary, Manipur State Legal Services Authority, for necessary further action.
Post on 05.09.2022.
CHIEF JUSTICE Sandeep MC (Cril. Rev.P. No. 10 of 2019. Page 7