Manmohan Sarin, J.

1. Petitioner has filed this civil misc. application, viz. CM. 1566 /97, seeking regular visitation rights with his children for approximately 1 to 2 hours a day. Petitioner submits that he has not met with his children since February, 1993 and is in India for a duration before returning to United States of America by mid July, 1997 or so. Petitioner had filed another misc. application, viz. CM. 2497/97 seeking respondent of the hearing of pending revision petition. Petitioner has serious misapprehensions about the further psychological and physical damage to his children by the respondent wife, whom he alleges, suffers from psychiatric disorder.

2. In reply to CM. 2497/97, respondent wife has set out her version, which shall be shortly adverted to. Respondent submits that reply to CM. 2497/97 be treated as also reply to the petitioners application, CM. 1566/97, seeking visitation rights, as no separate reply has been preferred.

3. This case has had a checkered history of acrimonious litigation between the parties. Before the respective contentions relating to the visitation rights are considered, it would be appropriate to briefly notice some of the relevant facts:

(i) Petitioner husband and respondent wife were living in New York ever since their marriage. Three children were born of their marriage. The eldest being daughter Nikita, born on 2.4.1988; while the twins, daughter Reva and son Neal, were born on 11.10.1989. Relationship between the couple soared and matrimonial discord ensured, followed by rounds of acrimonious litigation.

(ii) Petitioner alleges misapprehension of funds from his deposits in India by his father-in-law and withdrawal of US $ 20,000 by respondent wife. He further alleges misuse of his credit card by the respondent wife, even after separation.

(iii) Be that as it may, the respondent wife left the matrimonial home on 31.10.1992 in USA. She accused the petitioner of incestuous child abuse of daughter Nikita, who was then four years old. A police complaint was lodged in the United States. It is the petitioners contention that the police, after investigation, found the allegation of incestuous child abuse as untrue. The respondent wife returned to India with the children in March, 1993.

(iv) The Family Court in New York had ordered the custody of the children to be given to the petitioner. Petitioner has filed on record copy of a decree of divorce dated 24.2.1997, by which the Supreme Court of New York has dissolved his marriage with the respondent. Petitioner has been awarded sole custody of the children and further it has been declared that the petitioner has no liability for payment of maintenance to respondent.

(iv) Respondent, on her return to India, had filed a report with the Police Station at Greater Kailash, which was registered as Crime No. 197 of 1993 offences under Section 354/498, IPC. A further charge under Section 376, IPC was also added. The allegation was that some time between March and July, 1991 at New Delhi, the petitioner had outraged the modesty of his daughter by fondling with her vagina. An attempt to commit rape on the infant was also alleged. Petitioner, thereupon, filed Crl. A. 1385/95 in the Supreme Court of India and the Apex Court vide its judgment dated 31.7.1996, quashed the proceedings and the charge framed against the petitioner by the Sessions Judge.

4. Learned Counsel for the petitioner relies heavily on the Judgment of the Apex Court wherein the Apex Court has considered the complaints made by the respondent in incestuous child abuse against the petitioner, in New York as well as in Delhi. The Apex Court observed that the complaint made by the respondent with the New York Police about the petitioner committing sexual offences, was investigated by the New York Police who found the complaint bereft of truth, hook, line and sinker. As regards the complaint in India, the Court observed that the respondent had not even remotely alleged sexual abuse in the complaint filed before the CAW Cell in 1993. The Court found the respondent to be brimming with acerbity towards the petitioner on account of other causes. Further the respondent had found the marital life to be extremely painful and unhappy from the very inception. The respondent accused the petitioner of being alcoholic, inflicting violence on her and having irrational outbursts of tenper. The petitioners version that the respondent wanted to wreak vengeance on the petitioner by embroiling him in criminal cases in India was noted and found acceptance. The Court also took note of the petitioners contention based on the examination of the genitals of the child Nikita that the respondent with a view to concoct medical evidence against him seemed to have manipulated the childs genitals. This was based on the fact that Dr. Gordons report of the examination of the child found no evidence of sexual abuse, while the examination of the child by Dr. Prabha Kapoorin July 1993, showed a wide vaginal opening, wider than that could be expected of her age group. It is on record that during the relevant period petitioner had no access to the child. In this regard the Court observed, the aforesaid question posed by the petitioner in the context of expressing grave concern over what the mother might do with the little female child for creating evidence of sex abuse cannot be sidelined by us in considering whether the case should proceed to the trial stage The Court, after evaluating the material before it and considering the consequences of the nebulous allegations being allowed to the trial stage, including the examination of the child witness, - Nikita and the impairmeI1t on the development of childs personality, quashed the charges and the trial holding. But, in this case when the trial is going to be nothing but a farce, such a course of action should not be allowed to take place on account of the impending consequences befalling the child.

5. The Apex Court while hearing the arguments had also explored the possibility of a settlement between the parties and noted as follows:

While hearing the arguments we ascertained whether the spouses could settle their differences. Second respondent, who too was present in Court, made an offer through her Counsel that she would agree for annulling the criminal proceedings against the petitioner on the condition that he should withdraw his claims on the Bank deposits and would also relinquish his claim, for custody of the children, and further he should concede for a divorce, In response to the said conditional offer, petitioner agreed to give up all his claims on the large amounts in Bank deposits, and further agreed to have the divorce. But he stood firm that on no account custody of the children could go to the second respondent but if made to, subject to his rights of visitation.

This, he said, is because he is convinced that second respondent is unsuitable to be entrusted with the care of the children

6. With the aforesaid background, let us now consider the rival contentions of the parties on the question of visitation rights sought by the petitioner.

7. The petitioner, as noted in the narration earlier, submitted that after the judgment of the Apex Court, which has quashed the allegations of child abuse against him and in the light of the observations made, it is no longer open to the respondent to resist visitation rights to the petitioner on the false allegation of child abuse. Learned Counsel also referred to the decree of divorce and the fact that the U.S. Court had granted custody of the children-to the petitioner. The Guardian Judge in Delhi had earlier only granted interim custody to respondent, which has been challenged in the pending revision petition. Learned Counsel for the petitioner submitted that the petitioner, who was deeply in love with the children, had not seen them since February 1993. His repeated attempts to meet the children and have visitation rights were frustrated by the respondents false allegations. The peti tioner, it is contended is here for a short time, upto mid July 1997, and that he must be granted daily visitation rights to the children.

8. Learned Counsel for the respondent opposed the request for grant of visitation rights to the petitioner and submitted that in terms of the order dated 9.5.1997, admitting the revision petition, the Court had held that the petitioners meeting the minor children would not be in their interest. Petitioners request for visitation rights was directed to be considered while passing the final orders in the revision petition. She further contended that the petitioner, who was challenging the jurisdiction of the Guardian Judge in granting interim custody to the respondent in the revision petition, was invoking, indirectly, the same jurisdiction by seeking visitation rights. It is urged by her that earlier applications filed by the petitioner seeking visitation rights were either dismissed in default or were dismissed as withdrawn and there being no change in circumstances, the present application seeking visitation rights was not maintainable being barred by res judicata. She submitted that the petitioner could not now be permitted to seek visitation rights.

9. Learned Counsel for the respondent next argued that the elder daughter Nikita, was under treatment of the Child Psychologist, Dr. Akash Dhanraj since 1993 and presently she was attending sessions, once every two months or so since 1995. The child has shown encouraging results and nothing should be done to again inflict trauma on the child. She submitted that there should be no meeting rights granted to the petitioner with Nikita till the therapeutic treatment was complete, lest the childs trauma was revived. She relied on the report of the Child Psychologist Dr. Akash Dhanraj, given in 1995. She further submitted that the child was totally averse to meeting the father.

10. Ms. Pinky Anand, learned Counsel for the respondent, submitted that the children were faring well in School and referred to the progress reports filed. She argued that the children were in a congenial atmosphere and had the company of the children of the sister of the respondent, who were of the same age group. She submitted that the petitioner was unemployed having no elder person in the family or place of residence in Delhi.

11. Finally, learned Counsel for the respondent submitted, that if at all the Court was inclined to grant visitation rights, without prejudice to her contentions, it should only be supervised visitation rights for the twins Neal and Reva. She submitted that the child Nikita should be spared from any meeting with the father. As regards the observations of the Apex Court, learned Counsel for the respondent submitted that the same were in regard to the quashing of criminal trial and would not be binding on the Civil Court.

12.I have carefully considered the material on record and the respective submissions made. In my view, the order dated 9.5.1997, holding that the question of visitation rights would be considered at the time of final orders as well as the previous dismissal of applications cannot come in the way of consideration of the present application for visitation rights. Indisputably major objection of the respondent to the grant of visitation rights to the petitioner, was the allegation of child abuse against Nikita. With the pronouncement by the Apex Court by which the criminal proceedings are quashed, the said objection can no longer come in the way of grant of visitation rights to the petitioner. It goes without saying that the petitioner father having not met the children for a longtime is entitled to meet them and enjoy their company for some time. There has been a definite change of circumstances and there has been no adjudication of any of the previous applications on merits so as to debar the grant of visitation rights. In my view, the children cannot be kept bereft of the company of their father indefinitely. The love and affection and interaction with the father is necessary for the healthy development of the children. Even if the children have been kept out of meeting with their father for a considerable period, a beginning has to be made. It is of no avail to urge that the children are strangers to the father and the meeting would disturb their tranquillity. There may be initial resistance and emotional disturbance but the same has to be overcome in larger interests of the children and their welfare.

13.There is no merit in the submissions of the learned Counsel for the respondent that visitation rights should not be extended for the child Nikita. In fact, in my view, it would be appropriate if the petitioner meets all the three children together rather than meeting the twins or Nikita alone. The meeting with all the children together would perhaps help in reducing the discomfiture, if any which the children may individually experience. The possibility of the petitioner meeting the children at the residence of the respondent or her sister was explored. The response of the respondent was that the petitioner would not be welcome. In any case, in my view, it would be helpful if the petitioner meets the children without the respondent or her immediate relations being there.

14. Considering the peculiar facts and circumstances of the case and the nature of allegations that had been levelled against the petitioner and with a view to avoid- any further controversy in this regard, I am of the view that for the time being, meeting with the children should beheld in the presence of an observer. Accordingly, I appoint Sh. S.R. Sharma, Court Master and Sh. Lorren Banmiyal, Private Secretary of this Court to act as an observer in the meetings of the petitioner father with the children. The observer would co-ordinate the meetings. The meetings would be in the Court premises as per the schedule given below :

S. No.DateObserver,

1.02.6.1997Sh. Lorren Bamniyal.

2.09.6.1997Sh. Lorren Bamniyal.

3.13.6.1997Sh. S.R. Sharma.

4.23.6.1997Sh. Lorren Bamniyal.

5.30.6.1997Sh. S.R. Sharma.

6.05.7.1997Sh. S.R. Sharma.

7.12.7.1997Sh. Lorren Bamniyal.





15. All the children would be brought to the Court premises by the respondent at 11.00 a.m. and the meeting would be between 11.00 a.m. and 2.00 p.m. It would be permissible for the petitioner to take the children out of the Court premises for refreshment or a meal, though accompanied by the observer, who would ensure that the, meeting is conducted in a manner so as to provide sufficient privacy to the petitioner with the three children. No meeting has been fixed between 14th and 23rd of June, 1997, with a view to enable the respondent to take the children out on a short vacation, as proposed by her. The schedule of the meetings is up to 12th July, 1997; since the petitioner is to leave India by mid July. The observers shall be paid by the petitioner, a fee of Rs. 2,000 per meeting. The observers shall also ensure that the children are returned to the respondent by 2.30 p.m. latest.

16. Learned Counsel for the respondent had expressed an apprehension of the petitioner attempting to take the children away outside the jurisdiction of this Court. The petitioner out of his volition has submitted that he would deposit his passport if the Court during the scheduled meetings.

The application stands disposed of in terms of the aforesaid directions.