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Vipul v. Sneha

Vipul v. Sneha

(High Court Of Rajasthan, Jodhpur Bench)

S.B. Civil Writ Petition No. 9681/2023 | 13-12-2023

1. In the unfortunate and regrettable turn of events, notwithstanding that this Court made extensive efforts to facilitate re-conciliation between the parties, on failure thereof, they are before this Court for resolution of their differences arising out of matrimonial discord. Dispute herein is confined to visitation rights of the respondent-mother to meet her two sons.

2. Petitioner (father), the custodian parent, a practicing advocate of this Court, has filed present petition against the non-custodian parent (mother), a home maker and also working as coordinator in a private school. The Petition arises out of an interim application dated 25.10.2021 filed by the mother before the Family Court seeking visitation rights to meet two minor sons born out of the wedlock. During pendency of said application, learned Family Court passed an order dated 30.05.2023 summoning the children to the court, so as to take further decision thereafter.

3. Before the aforesaid order dated 30.05.2023could be implemented, the father filed instant petition, assailing the same. The said order was stayed vide an interim order dated 18.07.2023 passed by a coordinate Bench of this Court then seized of the matter.

4. In fact, before proceeding further, it would be apposite to reproduce two orders passed by coordinate Bench presided over by my learned Brother Dr Pushpendra Singh Bhati, J. then in seisin of the matter, which are self-speaking and reflect the mediation/reconciliation efforts made by the learned Mediator as well as this Court:

"Order- 18/07/2023

In the opinion of this Court, a proper mediation should be conducted.

Upon being asked, learned counsel for both the parties submit that the parties are prepared for mediation session in the presence of children in High Court.

List the matter tomorrow i.e. 19.07.2023 before the Mediator Centre attached with this Hon’ble Court. The parties are accordingly directed to appear before the Mediator.

The Mediator shall also enable the meeting of the respondent- mother with the children.

Let the matter be listed again before this Court on 27.07.2023 alongwith the Mediator’s report.

In the meanwhile, the proceeding before the learned Family Court shall be postponed to any date after 01.08.2023.

(DR. PUSHPENDRA SINGH BHATI), J”

"Order- 28/07/2023

1. With the consent of the parties, Dr. Pratishtha Dave, who is learned counsel and Officer of this Court is directed to conduct four counselling/mediation proceedings on each working Friday i.e. 04.08.2023, 11.08.2023, 18.08.2023 and 25.08.2023.

2. It is expected that both the parents cooperate with the learned Mediator in a matured manner, so as to enable the meeting of both the children with mother on each occasion. The terms of such meetings shall be fixed by the learned Mediator.

3. The aforesaid order is being passed looking into the sensitivity of the matter, particularly the involvement of tender aged children.

4. Dr. Pratishtha Dave is further directed to file her report before this Court in a sealed envelop regarding the aforesaid four meetings.

5. List the matters on 04.09.2023.

6. In the meanwhile, the proceedings in question pending before the learned Family Court shall remain suspended.

(DR. PUSHPENDRA SINGH BHATI), J.”

"Order- 04/09/2023

1. This Court had requested Dr. Pratishtha Dave, learned counsel/Mediator to mediate between the parties, as the matter was of extremely sensitive nature involving custody of tender aged children.

2. Dr. Pratishtha Dave, learned counsel/Mediator today was called upon the Court and this Court expressed its appreciation for the services extended by Dr. Pratishtha Dave, as a mediator to enable the children to spend some time with the mother.

3. Both the parties with their respective lawyers are also present in the Court.

4. In the given circumstances, this Court deems it appropriate to further request Dr. Pratishtha Dave, learned counsel / Mediator to further enable the same kind of meetings on 18.09.2023, 09.10.2023, 16.10.2023 & 01.11.2023, the timings and other modalities, if any, shall be decided by Dr. Pratishtha Dave.

5. Mr. Manoj Bhandari, learned Senior Counsel assisted by Mr. Sanjeet Purohit and Mr. A.K. Gaur, learned Additional Advocate General assisted by Mr.Salman Agha shall assist Dr. Pratishtha Dave, learned counsel/Mediator to arrive at a consensus regarding the timing and other modalities.

6. The office is directed to facilitate such meeting in creche of the High Court.

7. List the matters on 02.11.2023.

8. Dr. Pratishtha Dave, learned counsel/Mediator further is requested to give a sealed cover envelop report on the next date.

9. Interim order, if any, shall continue till then.

(DR. PUSHPENDRA SINGH BHATI), J.”

5. Apropos, the mediation proceedings though took place on different occasions, but as it later turned out, the entire effort was an exercise in futility in the end. No amicable solution came forth and the matter was then listed before this bench for adjudication thereof on its merits.

6. In fact, two earlier orders passed by me in the course of hearing of this matter are also relevant and the same are reproduced herein below:

"Order- 08/11/2023

Dr. Pratishtha Dave, learned Mediator has tendered her report in sealed cover envelope, which has been opened and same is placed on record.

After addressing the arguments at some length, learned counsel for the parties are ad idem that, de hors the matrimonial differences between the parties herein, as an interim arrangement mother of the children (wife of the petitioner) be granted access to meet her two children in their larger interest and welfare, since the love and affection of mother is equally essential part of upbringing as that of father.

Currently, both the children are in the custody of father and are residing with him at the matrimonial house, whereas the mother staying with the parents.

With the able and highly appreciated assistance of the learned counsel representing both the parties and after interaction with mother and the father who are present in the Court in person, it has been mutually agreed by all that starting tomorrow i.e. 09.11.2023, the mother will visit the children between 3:00 p.m. to 4:00 p.m. on the alternate days. During the period she visits her children for one hour, the father, a practicing advocate himself, shall allow exclusive access of the children to the mother by being somewhere else for one hour during her visit. Also, given the past hostility, it would be appreciated that grandmother of the children, during the time their mother visits, shall extend full cooperation to maintain harmony so as to avoid any unsavoury incident.

This Court suggests that she may stay in her room for that one hour.

It is also made clear that above mutual arrangement shall not be taken advantage by mother and she shall not take the children away from their residence during her visit.

Post it for further proceedings on 20.11.2023.

Before the above dictated order could be typed and signed, and the counsel for the petitioner had also closed the VC link (since she appeared from Delhi) and this Court was in middle of hearing the other cases listed today, father of the children once again came rushing to the Court and mentioned the matter midstream and he states that an observer may also be appointed who will stay present when the mother meets her children as he apprehends that she may cause some physical damage to them. To say the least, such a suggestion is completely preposturuous, this Court is unable to comprehend as to why would a mother who gives and creates life by giving her flesh and blood and herself suffers immense pain to deliver a child, would cause pain/damage to her own child.

Be that as it may, learned counsel for the respondent- wife who is present in the Court very fairly agrees to the suggestion given by the Court that father is at liberty to install C.C.T.V. cameras at his residence.

Aforesaid, suggestion is readily acceptable to the petitioner- father of the children also. He may implement the same.

List for hearing on 20.11.2023.

“Order- 23/11/2023

(ARUN MONGA),J”

The matter was earlier heard on 28.07.2023, when after detailed deliberations a consent order was passed. Pursuant thereto, the mother has been meeting her children as per the arrangement arrived between the parties.

On resumed hearing today, this Court was rather hopeful that certain bon homie would have been struck between the mother and the children and the same visitation arrangement could have continued during pendency of the proceedings before the court below, until the final adjudication of the inter se rights of the parents qua the custody of the children. However, it transpires that the petitioner (father of the children) has serious objection to continuance of the said arrangement. He states that the children have expressed reservations against meeting their mother any further.

In fact, the learned counsel representing the petitioner states that the children even reached out to her and expressed their anguish as to why such mutual arrangement was agreed without consulting them.

I have interacted with the mother of the children, who is present in the Court. She expresses her sentiments to the contrary. She states that ever since the year 2021, when she was forced to separate from her children and husband, it is for the first time she had a beautiful Diwali. She states that the children were very happy with her but they seem to be under duress & coercion.

In the peculiar premise, though ordinarily this Court would have refrained from calling the children to court premises, given their impressionable age, and instead would have endeavoured for some more congenial way out, but I am constrained to ask both the parents to be present in person along with the children on the next date of hearing, so as to interact with the children.

Instead of bringing the children to the court room, the petitioner shall remain present with the children in Chamber.

Post the matter on 28.11.2023.

Meanwhile, it transpires that the petitioner has also filed an application for recalling of the earlier order dated 28.07.2023 as well as an affidavit.

Registry to process the same.

(ARUN MONGA),J”

7. Apart from instant petition, the petitioner had filed another petition before this court. The other second petition was disposed of by me vide an order 01.12.2023 and the said order, being pertinent to understand the entire context and the controversy, is reproduced herein below:

"Order-01/12/2023

Petition herein, filed by father of the two minor sons whose custody is under lis, stems from his matrimonial discord with respondent/mother. Under challenge is an order dated 03.07.2023 passed by the learned Family Court No.1, Jodhpur vide which an application filed by the petitioner/father under Order VII Rule 11 CPC, seeking rejection of the custody petition filed by the respondent/mother, qua the minors, was dismissed.

2. In the course of hearing of the instant petition, a co-ordinate Bench of this Court presided over by my learned brother, Dr. Pushpendra Singh Bhati, J., then seized of the matter, passed an order dated 18.07.2023, which being apposite is reproduced here in below:

“In the opinion of this Court, a proper mediation should be conducted.

Upon being asked, learned counsel for both the parties submit that the parties are prepared for mediation session in the presence of children in High Court.

List the matter tomorrow i.e. 19.07.2023 before the Mediator Centre attached with this Hon’ble Court. The parties are accordingly directed to appear before the Mediator.

The Mediator shall also enable the meeting of the respondent-mother with the children.

Let the matter be listed again before this Court on 27.07.2023 along with the Mediator’s report.

In the Meanwhile, the proceeding before the learned Family Court shall be postponed to any date after 01.08.2023.”

3. Apropos, conciliation/mediation proceedings were carried out on different occasions, which eventually turned futile. Another petition bearing S.B. Civil Writ Petition No.9681/2023, filed by the father, also was taken up for hearing on the same day i.e. 18.07.2023, when vide a separate order it was directed to be heard along with the instant petition. Assailed by the father in the other petition, is an earlier order dated 30.05.2023, vide which the learned Family Court, on an application filed by respondent-mother seeking interim visitation, had summoned the children to be present in the Court. Grievance in the said earlier petition inter alia is that once an application under Order VII Rule 11 CPC was sub judice before the Family Court, it could not have passed the impugned order directing the personal presence of the children, without finally adjudicating issues raised in the pending application seeking rejection of the custody petition.

4. Be that as it may, both the aforesaid two writ petitions were clubbed together. During pendency thereof, children were also brought to the chamber under the orders of this court for interacting with them so as to seek their views. Post interaction, in the course of hearing today, learned counsel for the petitioner has made a suggestion that, since this Court has now already met the children, there is no requirement of the Family Court to seek their views by directing their presence. And, in case, Family Court and the respondent/mother do not insist personal presence of the children before the court below for interacting with them in course of the trial, petitioner-father shall not press the instant petition challenging the order vide which application under Order VII Rule 11 CPC was dismissed and, let the trial proceed further, which is otherwise stalled by interim order dated 18.07.2023 ibid passed by this court. The aforesaid recourse, as suggested by learned counsel for the petitioner/father, is also acceptable to the respondent wife, as well as her counsel, who are present in the Court.

5. As an upshot, with the mutual consent of the parties and their counsel, without delving into the merits thereof, the petition bearing S.B. CWP No.9707/2023 challenging the order dated 03.07.2023 is dismissed as not pressed and is disposed of as per understanding recorded in the preceding paragraph.

6. In the aforesaid premise, needless to say, the interim order dated 18.07.2023, vide which the further proceedings pending before the learned Family Court were directed to be adjourned, as well as another interim order dated 28.07.2023 vide which Family Court proceedings were suspended, also stand vacated forthwith and, the learned Family Court shall now proceed further in accordance with law.

7. As regards S.B. CWP No.9681/2023, this court met and interacted at length with the minor sons, both in presence of their parents and without. An attempt inter alia was made to bring forth a mutually acceptable way out to allow the mother to have interim visitation, but in futility. The said petition has been reserved for orders after hearing the rival arguments. Since some of the common record, attached with disposed of S.B. CWP No.9707/2023, may be required to be referred in S.B. CWP No.9681/2023, registry shall ensure that said disposed of petition along with its record is kept attached with S.B. CWP No.9681/2023, wherein orders have been reserved. All the mediation reports be also placed on record.

(ARUN MONGA),J”

8. Before adverting further, it may be pertinent to have a look at the sequence of some of the events from the day of separation of the parents. The chronology of events has been culled out from the written submissions handed over in the Court by the learned counsel for respondent. Same is as follows:

DATE

Event

10/01/2010

Petitioner and respondent entered into wed-lock on 10.01.2010 at Jodhpur. Out of said wedlock, the couple has been blessed with two sons, currently aged 11 and 12 years.

21/07/2021

Respondent/wife alleged physical assault by her husband/petitioner in the night and she had to seek police aid to be rescued, as per her claim.

Respondent-Wife claims she was not allowed by the petitioner- husband to take her sons along with her when she was forced to leave her matrimonial home.

23/07/2021

Qua the aforesaid incident, an FIR was registered against the petitioner-husband under section 323 & 342 IPC at Police station, Udaimandir, Jodhpur city (East).

01/08/2021

Another FIR under section 498-A, 406, 323 IPC was registered the petitioner-husband at Mahila Thana, Jodhpur City (East)

Both the above stated FIRs are under challenge before this court.

05/08/2021

Petitioner -father filed a child custody petition under section 7 of the Guardians and Wards Act, 1890 bearing Civil original case no. 35 of 2021.

25/10/2021

Respondent-mother also filed an application under section 25 of the Guardians and Wards Act, 1890 bearing Civil Original case no. 65 of 2021.

16/12/2021

Upon notice of child custody case filed by respondent, petitioner sought time to file reply. The matter was then fixed on 7.01.2022.

07/01/2022

Online hearing took place in child custody matter. No reply was filed by petitioner. The matter was then fixed on 03.03.2022.

03/03/2022

Petitioner again did not file reply in the child custody case filed by the petitioner. Respondent wife then filed an application to meet her children. Next date in the matter was fixed as13.04.2022.

13/04/2022

On a transfer application (TA)filed by the petitioner, matter was transferred by co-ordinate bench of this court from Family Court no. 1 Jodhpur to Family Court no. 3 Jodhpur. Next Date was fixed on 30.04.2022.

30/04/2022

Petitioner again sought time to file reply to the main case as well as visitation application dated 03.03.2022. Next date was fixed as 12.05.2022.

12/05/2022

On this hearing, petitioner-father chose to file an application under order 7 rule 11 CPC read with section 151 CPC. Matter was fixed for 16.05.2022.

16/05/2022

Respondent-mother filed reply to the application under order 7 rule 11 CPC read with section 151 CPC. Petitioner sought time and next date was fixed as 21.05.2022.

21/05/2022

Petitioner-father instead filed another application before the family Court stating that he had lost confidence in Family Court and the concerned court ought not to hear the matter. Case was adjourned for 01.07.2022.

01/07/2022

No arguments on the visitation application of the respondent. Matter was adjourned to 16.08.2022.

16/08/2022

No arguments again. Matter was adjourned to 09.09.2022

09/09/2022

No arguments again. Matter was adjourned to 10.10.2022.

29.09.2022

Meanwhile, petitioner husband preferred another TA in High court seeking transfer of the case from the then Family Court to another Family Court. On the same date, a co-ordinate bench of this court stayed the proceedings in the pending custody matter before Family Court no. 3, Jodhpur.

10/10/2022

Family court adjourned child custody matter to 14.12.2022, owing to the stay granted by High Court.

14/11/2022

TA filed by petitioner-father was allowed by co-ordinate bench of this Court.

14/12/2022

Child custody matter was received by the transferee Family court no. 1 Jodhpur, but due to strike of employees, it was adjourned to 08.03.2023.

08/03/2023

None appeared for petitioner before the transferee Family court. Noting the past conduct, Family Court gave one more opportunity to file reply, if any, and argue the visitation application on 20.04.2023.

Meanwhile, petitioner-father yet again filed two separate TAs before High Court, bearing SB Civil Transfer Application no.58/2023 and SB Civil Transfer application No.59/2023.

One TA was to seek transfer of the custody case filed by respondent-mother under Guardians and Wards Act.

Second TA was to seek transfer of the case filed by respondent under Section 13 of Hindu Marriage Act.

Both the above cases were sought to be transferred from family court no.3 to family court no.1 Jodhpur.

19.04.2023

Above stated both TAs were allowed by co-ordinate bench of this Court the cases were transferred from family court no.3 to family court no.1 Jodhpur.

20/04/2023

Family Court adjourned the matter to 01.05.2023.

01/05/2023

Family court posted the matter on 30.05.2023 for arguments.

02/05/2023

Respondent-mother filed a writ petition, bearing SBCW no. 5984

/ 2023, before High Court for expeditious trial of the matter. A co-ordinate bench of this Court then directed the Family Court to decide the matter preferably within period on 1 year.

30/05/2023

Family Court no. 1 passed the impugned order, vide the children were summoned, which is under challenge vide instant petition.

9. The petitioner alleges a series of contentious events in marital dispute with the respondent. The respondent and her family reportedly harassed and threatened the petitioner, pressuring him to abandon his law practice, relocate and dictated his life choices. Disputes led to an FIR against the respondent's father and a subsequent defamation suit by the petitioner. He claims that the respondent later manipulated court statements to put pressure for withdrawal of the suit. The respondent, after convincing the petitioner to co-own property, left the matrimonial home, reportedly beating their children. The petitioner filed for divorce and custody, citing the respondent's conduct. The respondent, a Twitter (now X) influencer, allegedly made defamatory remarks against the petitioner and attempted to kidnap their children, causing distress. Police reports and the children's statements support these claims. Legal proceedings are thus ongoing. The court is yet to decide on these matters.

10. Apart from the above facts pleaded, the petitioner also filed an additional affidavit dated 23.11.2023. In his deposition petitioner recounts a tumultuous encounter during this court- ordered meeting between the respondent and their children. Despite the petitioner's apprehensions about the respondent's behaviour, this court insisted on holding the meeting at the petitioner's home, with specific instructions for the petitioner's mother to stay in her room and the petitioner to leave the premises. Due to concerns for the petitioner's ailing mother and the children's aversion to meeting the respondent, the petitioner sought court directions for monitoring the meeting to prevent false allegations. The court directed the installation of CCTV cameras in the meeting room. The petitioner promptly arranged for CCTV cameras installation, reflecting his compliance with the court order. During the meeting, the respondent's refusal to comply with petitioner’s requests regarding her mobile phoneled to a confrontation. The respondent's brother created a disturbance outside, recording videos and causing commotion. The atmosphere was intimidating, and the respondent's intentions to humiliate and intimidate the petitioner were apparent. Despite efforts to ensure a monitored and amicable meeting, the respondent's brother interfered, leading to a chaotic situation. The petitioner left as directed by the court, but the respondent, influenced by her brother, initially refused to meet the children. Subsequently, the respondent changed her mind, causing further disturbance. The petitioner emphasizes the children's expressed unwillingness to be with the mother, citing instances of cruelty and abuse. The respondent's disruptive conduct, as observed in various incidents, is highlighted, including her brother's actions and the children's discomfort during meetings. The petitioner asserts that the respondent's recent tweet reflects her mindset and suggests her intentions are more about gaining sympathy than genuinely reconnecting with the children. The petitioner relies on the children's firm refusal to meet the respondent due to past traumatic experiences and is thus out-rightly against allowing the respondent-mother mother to meet her sons, be it in court or outside court. Hence the instant petition.

11. Learned counsel for the petitioner placed reliance on the following judgments:

S.

No.

Case Name

Comment

1.

Rosy Jacob Vs Jacob A. Chakramakkal, 1973 (1) SCC 840 [LQ/SC/1973/122]

Para 13 (s.17(3)- opinion of child) Para 15 (fitness of the parent to be guardian; they may grow as better

citizen, useful for society)

2.

Mrs Elizabeth Dinshaw Vs Arwand M. Dinshaw and Another, 1987 (1) SCC

42

Para 8- (issue of custody of child to be decided on sole criteria- paramount interest of the child- not rights of the parents)

Para 8- (conduct of father, does not inspire confidence in the court- not a fit and suitable person to be entrusted with custody of the child)

(father was denied for custody)

3.

Mausami Moitra Ganguly Vs Jayant Ganguly; 2008 (7) SCC 673 [LQ/SC/2008/1181 ;]

Para 12- (child explicitly stated that he wants to live with father)

Para 19- (interest of the child and right of the parties)

Para 20- (heavy duty cast)

4.

Gaurav Nagpal Vs Sumedha Nagpal, 2009 (1) SCC 42 [LQ/SC/2008/2333]

Para 37- (S.17(3)- if the child is grown up enough- then his preference shall be considered)

Para 43-47- (not right of the parents but interest of the child)

Para 48- (welfare of the child lies in giving environment to the child to become useful member of society)

Para 50-51: (moral and ethical welfare of the child)

5.

Tejaswini Gaud and others Vs Sekhar Jagdish Prasad Tewari and others,

2019 (7) SCC 42 [LQ/SC/2019/841]

Para 26- (interest of the child) Para 34- (ethical upbringing)

6.

Smiriti Madan Kansagra Vs Perry Kansagra, 2021 (12) SCC 289 [LQ/SC/2020/747 ;]

Para 15.1 to 15.5: (Factors, child’s preference)

Para 15.8: (Holistic growth)

Para 16: (preference of the child) Para 17.5 to 17.7: (Re. Preference

expressed by the child)

7.

Gaytri Bajaj Vs Jiten Bhalla, 2012

(12) SCC 471

Para 14-15: (children are not even

willing to meet the mother- visitation rights can not be given to her)

8.

Perry Kansagra Vs Smiriti Madan Kansagra, 2019 (20) SCC 753 [LQ/SC/2019/284 ;]

Para 28-32: (Re. Report of Mediator- its confidentiality)

9.

Mr Moumitra Kumar Nahar Vs Ms. Parul Nahar, 2015 SCC Online Del

11799

Para 27: (can the child be forced)

12. As regard the stand taken on behalf of the respondent- mother, in the course of hearing as well as in the written submissions, it is urged that de hors the matrimonial dispute respondent-mother is entitled to meet her sons. Denying a parent the right to meet their child is against the paramount consideration of the child's welfare. It is submitted that no law or parental right should override the fundamental importance of the child's welfare, asserting that it is essential for children to share their formative years with both parents. The denial of a mother's right to see her children is inhumane and contrary to the foundational values of family and civil society.

13. The respondent-mother's counsel relied on the following judgments, with extracted summaries provided as below :-

"• The minor's antagonism towards the father should not hinder visitation rights.

• The father's role in the child's upbringing is crucial for healthy growth.

• Telephonic contact and video conferencing should be facilitated.

• Acrimonious circumstances should not deny the father's right to see his daughter.

• Monthly visitation rights, permitting interaction with the father, are directed.

• The father is entitled to adequate access and visitation rights.

• Balancing parental conflict to ensure the child's sense of security is crucial.

• The mother, as a biological parent, is entitled to visitation rights.

• Different places of abode should not be a significant factor in denying visitation.

• Even if the bond between the mother and the child is broken, visitation rights should be considered.

• The court should act as a facilitator to re-establish the bond between the mother and the child.

• The interest of the child is paramount, and efforts should be made to ensure love and affection from both parents."

14. It is in the aforesaid background that I shall now proceed to decide the instant petition arising out of respondent/mother’s main application under section 25 of the Guardians and Wards Act, 1890 bearing Civil Original case no. 65 of 2021 seeking her visitation rights, which led to passing of the impugned order dated 30.05.2033 by the learned Family Court pursuant to an interim application filed by her, which is still sub-judice.

15. Foremost, it would be pertinent to note that the mother had to move out of the matrimonial house under compelling circumstances, though, of course, stand of the father is that she left on her own leaving the children behind. Whereas, her stand is that she was not allowed to take her children with her. The repeated failures of mediation suggest the deep- seated nature of the conflicts between the parents, resolution of which is likely to take quite some time. Till then however, this court cannot be oblivious to the sensitivity of the matter and the well-being of the minor children, considering their formative years and tender age.

16. Role of both parents is crucial in a child's upbringing, highlighting the social, psychological, and health benefits derived from active involvement of both parents. The stability provided by relationship with both parents contributes to the child's well-being, offering opportunities for success. Furthermore, the courts should act as facilitators to bridge the gap between children and their estranged parents. The court must advocate/direct ways, methods and modes for establishing a bond between the estranged parent and the child, including effective unsupervised visitation rights. In the case of estranged parents, the endeavour has to be to provide a child with the benefit of two happy homes, if a single happy home with both parents cannot be achieved.

17. In the instant case, whereas on one hand, the father claims that he has no issue letting the children meet their mother if they wish to. However, he also claims that when asked, the children vehemently reject any suggestion or persuasion to meet their mother. Going by past conduct, the petitioner/father’s strategy of prolonging the litigation by using various delaying tactics, through consecutive applications and transfer applications, is evident from the tabular chain of events ibid. This approach seems aimed at exploiting the children's present hostility towards their mother by draggingthe proceedings to ensure that the father's stance is fully supported when it is time for their testimony. In such a situation, the possibility of the children being coached/tutored for the purpose cannot be disregarded. It seems that the children's present hostility towards their mother is also the result of the petitioner’s neglect to educate, guide and persuade them positively and properly to meet and interact with their mother, if not a deliberate strategy to wean them away from her. On the other hand, when the mother files an application seeking visitation, instead of gracefully allowing the children to express their opinion, the father promptly challenges the court's decision to seek the children's input. Additionally, despite claiming that he doesn't obstruct the children from meeting their mother, the father contests any

[2023:RJ-JD:41996] (15 of 20) [CW-9681/2023]

attempt in that direction. It is also noteworthy that the mother has undergone numerous rounds of litigation initiated by the father, either through filing transfer applications or by intentionally delaying proceedings with various applications. All these expenses have been incurred without compensation from the husband, who is fully capable of supporting her financially. Consequently, the petitioner is directed to pay a litigation cost of Rs.2 lakhs to the respondent towards all the multiple rounds of litigation at his instance. Non payment of the cost shall be taken as deemed dismissal of his pending custody petition before the Family Court and likewise his defence shall be struck off in the custody petition filed by the respondent mother.

18. Furthermore, it is evident that the father is unduly possessive for the children and overly sensitive about trivialities, paying attention to and projecting even the minutest details that would normally be disregarded. In his additional affidavit dated 23.11.2023, he mentioned that his wife's brother, who arrived to accompany his sister for a one-hour visitation, was standing outside his house and was consuming chips from an 'Uncle Chips' packet and, that seemingly caused annoyance to the petitioner. Instead of offering his brother-in-law a seat either outside or in the garden where his other staff members were seated, the father made an issue out of the former’s choice of snacks consumed and his standing outside the house. Another significant aspect demonstrating the father's reluctance to allow the children to meet in a pleasant environment is evident his actions than his words.

Although he claims to have no objection to the children meeting their mother, his behaviour contradicts this statement. When this court ordered the mother's meeting with the children, he insisted, though there was no court order, that she leave all her belongings, including her cell phone, outside the room. Additionally, he ensured two staff members acted as security guards outside the room. This arrangement made the mother feel like a prisoner during her one-hour meeting with her sons, under the surveillance of the supposed staff members, actually acting/masquerading as guards, and constant CCTV recording. The contents of the petitioner's additional affidavit and the conditions imposed on the respondent mother, even though accepted by her in the given situation, before meeting her sons are self-explanatory and do not require further elaboration.

19. To create life and give birth to the child is the God gifted power that lies with the mother. But here is a situation where her own creations/sons are not interested to even meet her, let alone live together. When asked during their chamber visit in this court, the boys flatly refused to acknowledge that they owe their life to their mother. Both the minor sons have shown their disinclination with a firm ‘NO’ as an answer when this Court interacted with them, to seek their opinion if they would like to spend some time with their mother. The sons are clearly oblivious to the reality that becoming a mother is undoubtedly the hardest thing to do, given the pain and labour it takes to produce a child. Emotionally, albeit it is greatest thing to happen to a woman, to create life from her own flesh and blood. It has rightly been said – “Motherhood is the greatest thing, yet the hardest!” The hardest thing for the respondent-mother herein has become even harder, given the matrimonial acrimony, which seems to have trickled down to minor sons ever since her separation.

20. Given the high level of hostility between the parents, which seems to have a direct impact on the children's perception about and their present reluctance to interact with the mother, I am of the opinion that an attempt has to be first made to try and navigate them gradually and methodically to guide/educate them about the role and importance of both the parents in their life, natural love, affection and concern for them and their welfare. One way to do it would be to involve a psychologist. The emotional complexity of the situation warrants need for professional intervention to understand and address the children's feelings and concerns and to create a structured and monitored environment for them. It is only thereafter, that the pending application of the mother seeking visitation rights ought to be decided by the Family Court. For want of professional expertise, neither this court nor the Family court is in the position of passing any fruitful and implementable order forcing the children to meet their mother in view of the current adamance to the contrary. This court expects that both the parents shall take observations made herein above in the right spirit for the emotional well-being and welfare of their children.

21. As an upshot, impugned order dated 30.05.2023 is though set aside, but the petition is disposed of with a direction to the petitioner father that in order to protect the children's emotional and psychological interests, he shall take his sons to a psychologist on Saturday of every weekend for counseling for one hour (and more, if so advised by the latter) about the (a) role and importance of both the parents in their life, natural love, affection and concern for them and their welfare; (b) identify and analyse the reasons for the children’s reluctance to meet/interact with their mother; (c) find out if the children have any misconceptions and pre- conceived notions against their mother and (d) render his expert professional guidance to clear any such misconceptions and pre-conceived notions of the children against their mother.

22. The petitioner shall allow the psychologist to interact with them without his (father) presence. In case, the psychologist wishes to or requires presence of the mother, the petitioner shall not directly or indirectly cause any hinderance therein and she shall be permitted to join the counselling sessions. Father/petitioner shall extend full cooperation for this arrangement.

23. The psychologist shall submit his report to the family court after 6 sittings and continue holding the sittings during pendency of the trial. Professional fee of the psychologist shall be paid by the petitioner-father. It is desirable to apprise the named psychologist of the aforesaid basic facts to understand and perform his brief in proper perspective. Copy of the instant order be, therefore, sent to him. As regards choosing a psychologist for children, this Court in discharge of its duty as parens patriae and to endeavor for children's welfare, requests Dr. Madhabanada Kar, Director, AIIMS, Jodhpur to depute a suitable psychologist from his institute, who shall start the counseling session with effect from 16.12.2023 i.e. the forthcoming Saturday onwards at the place and time to be conveyed to the petitioner/father of the children. After completion of the 6 sessions a report shall be submitted by the psychologist to the learned Family Court. Registry of this court to ensure compliance of this order by taking appropriate steps with the office of the Director, AIIMS, Jodhpur, as well as, the father of the children.

24. As directed above, the petitioner shall also pay a litigation cost of Rs.2 lakhs to the respondent towards all the multiple rounds of litigation at his instance.

25. Before parting, I may hasten to address certain privacy concerns arising out in the matters of this kind. The Registry of this Court as well as the Family Courts in the State of Rajasthan need to be cautious in future to ensure that they must respect the privacy of the parties in matrimonial disputes by ensuring that their identities are not disclosed and names of the parties are shown as XX vs YY or otherwise, the same are masked. The Registry is directed to issue an appropriate circular to the Family Courts to strictly carry out compliance thereof.

26. Even in this court, the names of both the parties will accordingly be masked on the website as well as on mobile app in the both the petitions. So shall it be done in the present case by the learned Family Court below.

27. As far as present petition is concerned, this judgment is being delivered by titling it as XX versus YY by omitting their names from array of parties.

28. To sum up, the petition is disposed of as below:

1). Petitioner to endeavor for children's welfare by starting to take them to a psychologist from coming Saturday. Psychologist shall be deputed/chosen by the Director, AIIMS, Jodhpur.

2). Psychologist is requested to suggest suitable measures for children's bonding with both parents.

3). Psychologist is also required to submit report in sealed cover to the Family Court.

4). Family Court to proceed in the matter further for disposal of respondent's application for ad-interim relief and the main case after submission of the report, as above.

Advocate List
  • Ms Shobha Gupta through VC Mr Vipul Singhvi (petitioner in person)

  • Mr Salman Agha Ms Sneha (respondent in person)

Bench
  • HON'BLE MR. JUSTICE ARUN MONGA
Eq Citations
  • 2023/RJ-JD/41996
  • LQ/RajHC/2023/2754
Head Note

Rajasthan High Court XX vs YY S.B. Civil Writ Petition No. 9681/2023 Date of Order: 08/12/2023 **Headnote** * Visitation Rights of Non-Custodial Parent — Welfare of Child Paramount — Role of Psychologist in Facilitating Visitation — Professional Fee of Psychologist to be Paid by Custodial Parent — Privacy of Parties in Matrimonial Disputes to be Respected.* **Key Legal Issues:** 1. Visitation rights of a non-custodial parent. 2. Welfare of the child as the paramount consideration. 3. Role of a psychologist in facilitating visitation. 4. Professional fee of the psychologist to be paid by the custodial parent. 5. Privacy of parties in matrimonial disputes to be respected. **Relevant Sections of Law:** * Guardians and Wards Act, 1890, Section 25. **Case Reference:** * Rosy Jacob vs Jacob A. Chakramakkal, 1973 (1) SCC 840. * Mrs Elizabeth Dinshaw vs Arwand M. Dinshaw and Another, 1987 (1) SCC 42. * Mausami Moitra Ganguly vs Jayant Ganguly; 2008 (7) SCC 673. * Gaurav Nagpal vs Sumedha Nagpal, 2009 (1) SCC 42. * Tejaswini Gaud and others vs Sekhar Jagdish Prasad Tewari and others, 2019 (7) SCC 42. * Smiriti Madan Kansagra vs Perry Kansagra, 2021 (12) SCC 289. * Gaytri Bajaj vs Jiten Bhalla, 2012 (12) SCC 471. * Perry Kansagra vs Smiriti Madan Kansagra, 2019 (20) SCC 753. * Mr Moumitra Kumar Nahar vs Ms. Parul Nahar, 2015 SCC Online Del 11799. **Facts:** * The petitioner (father) and the respondent (mother) were married in 2010 and had two sons. * In 2021, the mother left the matrimonial home alleging physical assault by the father. * The father filed a child custody petition under the Guardians and Wards Act, 1890. * The mother also filed an application under the same Act seeking interim visitation rights. * The Family Court summoned the children to appear before the court. * The father challenged the order of the Family Court in the High Court. * During the pendency of the petition, the High Court ordered the parties to undergo mediation, which was unsuccessful. * The High Court also interacted with the children in its chamber. **Judgment:** * The High Court noted that the role of both parents is crucial in a child's upbringing and that the welfare of the child is the paramount consideration. * The Court further observed that the children were adamantly opposed to meeting their mother and that the father was overly sensitive about trivialities. * The Court opined that an attempt should be made to gradually and methodically guide the children about the role and importance of both parents in their life. * The Court directed the father to take the children to a psychologist for counseling to understand the reasons for their reluctance to meet their mother and to address any misconceptions or pre-conceived notions they may have. * The Court also directed the father to pay a litigation cost of Rs. 2 lakhs to the mother. * The Court further directed the registry of the High Court and the Family Courts in the State of Rajasthan to respect the privacy of the parties in matrimonial disputes by ensuring that their identities are not disclosed. **Significant Findings:** * The Court emphasized the importance of the welfare of the child as the paramount consideration in determining visitation rights. * The Court recognized the role of a psychologist in facilitating visitation and in addressing any emotional or psychological issues that may be hindering the child's relationship with the non-custodial parent. * The Court directed the custodial parent to pay the professional fee of the psychologist. * The Court emphasized the importance of respecting the privacy of parties in matrimonial disputes.