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2005 DIGILAW 1597 (MAD)

K. S. Venkat Raja v. A. B. Chitra

2005-09-22

R.BANUMATHI

body2005
Judgment : 1. This Petition is filed to permit the Petitioner to have visitation tights in respect of Minor Child-Smrti in terms of the order passed by this Court in C.R.P. Nos. 399 and 400 of 2004 (on 31.1.2005). 2. The Minor Child-Smrti, aged about eight years has become victim of the marital discord between the Husband and the Wife. C.R.P. Nos. 399 and 400 of 2004 and number of other Revision Petitions in C.R.P. Nos. 2087 of 2002, 1248 of 2003, 2725 of 2003 and the proceedings in I.A. No. 82 of 2003 in H.M.O.P. No. 29 of 2002 ere all pertaining to the visitation rights claimed by the Petitioner/Father. 3. For proper appreciation of the contentious points urged, we may briefly refer to the facts and the litigation between the parties. The Respondent/Wife has filed H.M.O.P. No. 29 of 2002 - Petition for Divorce on the ground of Cruelty under Section 13(1)(i-a) of the Hindu Marriage Act on the file of Sub-Court, Srivilliputhur. The said H.M.O.P. No. 29 of 2002 was allowed granting Divorce between the Parties. As against the order of Divorce in H.M.O.P. No. 29 of 2002, the Petitioner/Husband has preferred H.M.C.M.A. No. 13 of 2003 on the file of District Court, Srivilliputhur. The said H.M.C.M.A. No. 13 of 2003 was allowed setting aside the order of Divorce granted in H.M.O.P. No. 29 of 2002. 4. I.A. No. 82 of 2003: In H.M.O.P. No. 29 of 2002, the Petitioner/ Husband has filed this Application under Section 26 of the Hindu Marriage Act to have custody and visitation rights of the Minor Child-Smrti, who was studying at Chinmaya Vidyalaya, P.S.K. Nagar, Rajapalayam. He has claimed visitation rights on all school working days during the lunch hours from 12.40 p.m to 01.20 p.m and also to have Interim Custody from Friday Evening to Monday Morning on all weekends. Learned Subordinate Judge, Srivilliputhur has passed the order only to the limited extent of having the custody of the child on the Second Saturday from 08.00 a.m to 09.00 p.m. and thereafter, the Petitioner ought to have handed over the Child to the Respondent. 5. C.R.P. Nos. 339 and 400 of 2004: Aggrieved against the orders in I.A. No. 82 of 2003 and I.A.SR. No. 7419 of 2003 in H.M.O.P. No. 29 of 2002, the Petitioner/Husband has preferred these Civil Revision Petitions. 6. 5. C.R.P. Nos. 339 and 400 of 2004: Aggrieved against the orders in I.A. No. 82 of 2003 and I.A.SR. No. 7419 of 2003 in H.M.O.P. No. 29 of 2002, the Petitioner/Husband has preferred these Civil Revision Petitions. 6. Considering that the dispute relates to the visitation tights of the Minor Child, the learned Single Judge of this Court has enquired the parties in the Chamber and has issued the following directions: “(a) The mother will leave the Child at the house of the father between 07.00 p.m. and 08.00 p.m on every Friday. The Father will keep the child with him on Saturday and shall return the child to the Mother on Sunday morning between 07.30 a.m and 09.00 a.m. (b) If the Father is not available at the residence when the Mother goes there, then it is open to the Mother not to comply with direction (a). The Father shall ensure that, he is with the child throughout the entire period during which he has been permitted to have the custody as per direction (a). (c) ................. 4. If the Mother goes out of Rajapalayam for Conference, etc. she shall intimate the same to the Father and also give the relevant, dates and after ensuring that the Father is available on all those days, she shall leave the Minor Child with the Father. If the Father is not available at Rajapalayam, it is open to the Mother to leave the child with her parents. 5. Whenever the Child is to be left with the Father, it will be the Mother who will take the child to the Father’s House and leave the child there and when it is Father’s turn to return the child to the Mother, the Father shall take the Child and leave her with the Mother. The Mother shall suitably instruct her servants not to stop the Father at the gate on such occasions.” In the above order, it was made clear that the above directions shall be followed until the Appeal is disposed of by the District Court, Srivilliputhnr. 7. H.M.C.M.A. No. 13 or 2003 was allowed on 20.6.2005. Thereafter, this Petition was filed on 22.7.2005 to continue the visitation rights as per the order dated 31.1.2005 passed in C.R.P. Nos. 399 and 400 of 2004. 7. H.M.C.M.A. No. 13 or 2003 was allowed on 20.6.2005. Thereafter, this Petition was filed on 22.7.2005 to continue the visitation rights as per the order dated 31.1.2005 passed in C.R.P. Nos. 399 and 400 of 2004. It is alleged that even after allowing of H.M.C.M.A. No. 13 of 2003 and the Decree of Divorce having been set aside, the Respondent/Wife is refusing to hand over the custody off the minor child to the Petitioner from 20.6.2005. It is alleged, that in spite of the specific direction and the orders of the Court, the Respondent is refusing to hand over the custody of the minor child. In the Petition, Petitioner prays for extension of the order that no prejudice would be caused by giving suitable directions regarding the visitation rights and custody of the minor child. It is stated that formal requests were made by the Petitioner by sending letters dated 26.7.2005 and 14.7.2005. 8. Denying the averments in the Petition, the Respondent has filed the Counter Statement contending that when no proceeding is pending on the date of Application before the High Court, the relief as claimed by the Petitioner cannot be granted by the High Court. It is further stated that as per the order of this Court, the Minor Child was handed over to the Petitioner and he ought to have handed over the Minor Child to the Respondent before 14.5.2005. But, the Petitioner is said to have delayed the handing over of the Minor child to the Respondent for about ten days. The Respondent issued a Telegram through her counsel on 18.5.2005 to hand over the Child and thereafter the Petitioner is said to have handed over the minor Child only on 25.5.200S. In the Counter statement, it is further alleged that the Petitioner is residing at No. 13-A, North Street, Sree Ram Nagar, Alwarpet, Chennai and that he cannot have the visitation right or the custody of the minor child. After the disposal of H.M.C.M.A.No.13 of 2003, there could be no order for visitation and custody of the minor child by this Court. The Petitioner has to seek remedy only before the appropriate forum and when no proceeding is pending in the High Court, the Petitioner cannot seek for extension of the earlier order. 9. On behalf of the Petitioner, learned Senior Counsel Mr. The Petitioner has to seek remedy only before the appropriate forum and when no proceeding is pending in the High Court, the Petitioner cannot seek for extension of the earlier order. 9. On behalf of the Petitioner, learned Senior Counsel Mr. R. Viduthalai has submitted that the Court is the custodian of the Minor Child and that extension of the earlier order of visitation rights would cause no prejudice to the Respondent. It. is further submitted that since the appeal has been preferred against the order in H.M.C.M.A. No. 13 of 2003, this Court could well pass the order of extention of the visitation rights. Drawing the attention of the Court to Section 26 of the Hindu Marriage Act learned Senior Counsel has further submitted that in any proceedings under the Act, the Court may order the custody of the minor child. Contending that whan the Court has express power to pass suitable order in respect of the custody of the Minor child and when the earlier order was passed after enquiring the parties and the minor child, learned Senior Counsel for the Petitioner has submitted that in the interest of Minor child, the earlier order passed in C.R.P. Nos. 399 and 400 of 2004 is to be extended. 10. Submitting that in the earlier proceedings, the order of visitation rights have been granted only till the disposal of the Appeal in H.M.C.M.A. No. 13 of 2003, learned counsel for the respondent has submitted that when the Appeal has been disposed of on 20.6.2005, this Court has no jurisdiction to entertain the Petition. It is further submitted that after the disposal of the Appeal, this Petition is not maintainable. Drawing the attention of the Court to the delay in handing over the Child during the month of May 2005, learned counsel for the Respondent has further submitted that any extension of the order would cause serious prejudice to the interest of the minor. 11. When H.M.C.M.A. No. 13 of 2003 on the file of District Courts Srivilliputhur was allowed, at this stage can this Court order the extension of the visitation rights and interim custody of the Minor child to the Petitioner is the main point arising for consideration in this Petition. 12. 11. When H.M.C.M.A. No. 13 of 2003 on the file of District Courts Srivilliputhur was allowed, at this stage can this Court order the extension of the visitation rights and interim custody of the Minor child to the Petitioner is the main point arising for consideration in this Petition. 12. The following dates are relevant to be noted: Marriage solemnised on : 23.5.1996 Child born on : 8.10.1997 Respondent /Wife filed : H.M.O.P. No. 29 of 2002 Divorce granted on : 20.6.2003 H.M.C.M.A. No. 13 of 2003 allowed on : 20.6.2005 13. C.R.P. Nos.399 and 400 of 2004 were preferred against the order of the Subordinate Judge, Srivilliputhur in I.A. No. 82 of 2003 and I.A.SR. No.7419 of 2003 in H.M.O.P. No. 29 of 2002. At the time when the Court had taken up C.R.P. Nos. 399 and 400 of 2004, the Court had squarely dealt with the visitation rights of the Petitioner and the custody of the Minor Child, which arose out of the order passed in the interlocutory order made in the matrimonial proceedings/Divorce proceedings then pending between the parties. H.M.C.M.A. No. 13 of 2003 was allowed on 20.6.2005 setting aside the Decree of Divorce. Either at the time at filing of this Petition or presently, no proceedings are pending in this Court. It is stated that as against the order in H.M.C.M.A. No. 13 of 2003, C.M.S.A.SR. No. 33585 of 2005 has been filed. The question of admission of the said C.M.S.A.SR. No. 33585 of 2005 is a matter of procedural formalities. As on date no proceedings are pending in this Court. This Court cannot assume original jurisdiction in respect, of custody relating to minors. Even if that Appeal is to be admitted, in this Court the Petitioner cannot seek for custody of the Child since it is a matter of evidence to be adduced pertaining to the day to day life and normal routine of the minor child. 14. In fact, the earlier order of visitation rights and custody of the minor child in C.R.P. Nos. 399 and 400 of 2004 vas ordered only till the disposal of the Appeal in H.M.C.M.A. No. 13 of 2003. The Court cannot seize up the matter as the Court has no original jurisdiction and order extension of the visitation rights and interim custody of the minor child. 399 and 400 of 2004 vas ordered only till the disposal of the Appeal in H.M.C.M.A. No. 13 of 2003. The Court cannot seize up the matter as the Court has no original jurisdiction and order extension of the visitation rights and interim custody of the minor child. Section 26 of the Hindu Marriage Act provides the Court for passing orders with respect to the custody, maintenance and Education of the Minor children in the proceeding under the Act. Such orders may be passed either as Interim Orders in the proceeding or at the time of passing of the Decree and even subsequent thereto. In consideration of the custody of the minor child while exercising the jurisdiction under Hindu Marriage Act, Section 26 of the Hindu Marriage Act alone should be looked into as it gives complete jurisdiction to the Court. Section 26 of the Hindu Marriage Act does not confer an independent right to any person. It is a right conferred on the patties to a litigation, litigating under the Act only in a pending proceedings. If no proceeding is pending, Section 26 of the Hindu Marriage Act does not create any right seeking for visitation rights independent of any of the proceedings under the Act. Even if the C.M.S.A.SR. No. 33585 of 2005 is to be admitted, this is not the appropriate forum to agitate the matter regarding the custody of the minor child. 15. Learned Senior Counsel appearing for the Petitioner very much urged that the Court is the custodian of the Minor Child and in the interest of the minor child, the objections and technicalities are not to come in the way to order the visitation rights, which is in the interest of the Minor. This contention does not merit acceptance. No doubt, procedural objections and technicalities should not come in the way of doing justice in ensuring the welfare of the minor. While considering the matters relating to custody, duty is cast upon the Court to take into account, several factors like Health, Education of the Minor Child and other aspects of life to secure the paramount welfare of the minor. In the matters of Custody, numerous issues arise in the day to day life of the child, on which the parent charged with the custody has to decide and to take care. In the matters of Custody, numerous issues arise in the day to day life of the child, on which the parent charged with the custody has to decide and to take care. The interest of the minor in the day to day life of the child involves many matters like Health, Education and other issues. These aspects cannot be determined by mere averments in the Petition or Counter Statement or by merely hearing the arguments of the parties. Appropriate steps ought to have been taken in the proceedings in the Courts below to pass a final order regarding the custody of the child and to have the visitation rights. Having not done so in the appropriate forum, it is not open to the Petitioner to invoke the jurisdiction of this Court to extend the order of visitation rights and the interim custody of the minor child. When the Petitioner has not moved the Court in H.M.C.M.A. No. 13 of 2003, it would not be appropriate to extend the order of visitation rights already granted in C.R.P. Nos.399 and 400 of 2004, which was passed only for the period till the disposal of the Appeal in H.M.C.M.A. No. 13 of 2003. 16. On behalf of the Respondent, several objections have been raised regarding the maintainability of the Petition. Learned Senior Counsel for the Petitioner has submitted that the Petitioner is very much interested in the Welfare of the child and that he had taken the child abroad during the vacation and that the Child is very much affectionate towards the Father. Elaborate arguments have been advanced by both sides as to which of the parent would lake better care of the minor child. In the absence of any evidence and materials, the correctness of the arguments and the contentions cannot be tested. The interest of the minor child cannot be determined by merely hearing the arguments of both parties. It is a matter of evidence to be determined by the appropriate forum. 17. Learned Senior Counsel for the Petitioner has placed reliance upon the decision reported in Kumar V. Jahgirdar v. Chethana Ramatheertha, 2004 (2) SCC 688 , wherein the Supreme Court has dealt with the matter regarding the custody of the child after Trial and the Court has determined the visitation rights based upon the evidence on record. 17. Learned Senior Counsel for the Petitioner has placed reliance upon the decision reported in Kumar V. Jahgirdar v. Chethana Ramatheertha, 2004 (2) SCC 688 , wherein the Supreme Court has dealt with the matter regarding the custody of the child after Trial and the Court has determined the visitation rights based upon the evidence on record. In the case in hand, there is no such evidence on record pertaining to the custody of the minor child. The Petitioner and the Respondent are entangled in the matrimonial dispute. The petitioner ought to take steps only before the appropriate Forum. 18. In that view of the matter, there cannot be any order of extension of visitation rights or the custody of the minor child. Having not moved the District Court during the hearing of H.M.C.M.A. No. 13 of 2003 the petitioner cannot take advantage of the appeal filed by the Respondent/Wife in C.M.S.A.SR. No. 33585 of 2005, which is yet to be admitted. This petition has no merits and is liable to be dismissed. 19. For the foregoing reasons, this Petition is dismissed. No costs.