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2012 DIGILAW 882 (BOM)

Vinod Gulshandev Chopra v. Vimi Vinod Chopra

2012-04-27

ROSHAN DALVI

body2012
Judgment : 1. The petitioner husband has challenged the order of the Judge, Family Court No.5, Mumbai dated 31st March, 2011 modifying the order of the access of the 3 children of the petitioner by which the learned Judge has cancelled the access of the petitioner to the 2 minor daughters and continued the access of the petitioner to his minor son. 2. The parties have had a very acrimonious dispute. In fact, the application upon which the impugned order is passed is Exhibit 203 showing the number of applications taken out by both the parties in the Family Court litigation. 3. The daughters of the petitioner have been stated to be 16 and 15 years of age in March, 2011. There are, therefore, almost nearing the age of majority at present. In fact, their ages were shown to be 16 and 15 years even in October, 2010 when in another application the age came to be observed. 4. The learned Judge has concluded that in view of the uninfluenciable age of the 2 daughters, they are capable of taking their own decision independently on their own and since they were reluctant to meet their father she has concluded that there is no point in continuing the order of access passed on 14.10.2009 and modified that access by cancelling it. 5. She has also observed that the son is 9 years old at an influenciable age and, therefore, continued that access. In access to the son has been considered by this Court earlier in which an SLP came to be filed in which also that access has been confirmed and parties have been directed to the Child Counsellor in that regard, incidentally without the 2 daughters. 6. The father has challenged the part of the impugned order refusing access to his daughters. It is contended on behalf of the father that under the law the time limit during which access must be granted of 18 years and the order of the learned Judge does not abide that time limit. 7. True it is that 18 years is considered in law as a right age up to which a person continues to be called a child. Children are little people who have big rights. He/she is, therefore, required to be both protected and empowered with regard to the access that he/she has to his parents. 7. True it is that 18 years is considered in law as a right age up to which a person continues to be called a child. Children are little people who have big rights. He/she is, therefore, required to be both protected and empowered with regard to the access that he/she has to his parents. However in a given case the welfare of the child may require he/she not being given any access to one or both of his parents. No hard and fast rule can be laid down except the prime rule that all children need a love and affection, care and upbringing of both their parents and the parental responsibility extends to each of the parents granting the other opportunity to do so. 8. It may also be mentioned that it is not the right of the parents that are to be determined in an application for custody or access but the right of the child to have such access. If however a child for any reason through his misfortune or his misconduct brings himself or herself in a situation in which he/she denies to himself or herself such access or creates a situation in which the access would have to be denied to him, those aspects would be in the discretion of the Court to be used in the interest and welfare of the child alone. It is, therefore, that the age of access may be flexibly used upto a point. 9. It is within this ambit that the access of the petitioner to his daughters as against his access to his son would have to be viewed. The petitioner himself accepted such a position, albeit not for a permanent period, even earlier in the earlier litigations even before this Court. 10. When the mother of the children, the respondent herein, denied the petitioner access to all her children and the petitioner claimed the access, he initially claimed it in respect of his son before this Court also. That was in the best sagacity and wisdom of the petitioner at that time. 10. When the mother of the children, the respondent herein, denied the petitioner access to all her children and the petitioner claimed the access, he initially claimed it in respect of his son before this Court also. That was in the best sagacity and wisdom of the petitioner at that time. Both the petitioner as well as the Court and its infrastructure would be better able to grant the petitioner the access by repairing any damage to the relationship that may have been caused upon the petitioner concentrating on the access to his son which has been done previously and which the learned Judge has correctly continued and granted in the best interest of the son. 11. The daughters were present in my Court at the time the Writ Petition came to be heard. I directed the daughters as well as father to come to my chamber during which time I had conversations with the daughters and the father separately as well as jointly. I allowed both to converse with one another also which they both did. 12. The daughters demonstrated an extremely venomous disposition towards their father. The father was amiable and understanding. This has been reflected in the earlier reports of the Child Counsellor also. The daughters narrated to the Court parrotlike what was mentioned in the petition containing expressions like harassment, cruelty etc. without any particulars or illustrations except one showing certain beatings on their hands on a given date. (It is did not become clear whose hand that was because both the daughters narrated the same incident and showed their hands !) Having been in the custody of one parent and having had absolutely no contact with the other, the source of such venom is easy to see. 13. The father patiently heard their accusations by which the daughters vented out their feelings to the father. The father did not start arguing with the Court to insist on his parental “Rights”. He seemed to appreciate that children need a tugofpeace, not a tugofwar. 14. The Court cannot psychologically appreciate the nuances of the behaviour of either of the parties except consider what was evident before it. That would be the work of child psychologist alone who is specially trained and skilled in that art and science. 15. He seemed to appreciate that children need a tugofpeace, not a tugofwar. 14. The Court cannot psychologically appreciate the nuances of the behaviour of either of the parties except consider what was evident before it. That would be the work of child psychologist alone who is specially trained and skilled in that art and science. 15. The question that remains before the Court is whether the daughters should be sent to the Child Counsellor for that purpose or not. Undoubtedly in such cases that would be the only remedy to grant the child what the child denies to himself or herself. However that remedy is not instant. It takes time for such strained relationship, which would be out of misunderstanding, misconception or misgiving to be able to heal so that a clear picture would emerge for such children. The age, at least, of the eldest daughter, would not permit such study to be done upon her. The other daughter would soon follow. 16. Of course, the eldest daughter stated that she was 18 years of age which has not been substantiated. The resistance of the mother as well as the daughters put up against the father for claiming access itself shows that if she had reached that age they would not have allowed a day to pass before informing the Court that the petition had become infructuous for the eldest daughter. Hence what the daughters would say whether as regards their age or make the allegations against the father would not deserve to be accepted at face value. 17. Courts would be only catalysts in bringing together the family usually consisting of the father, mother and the children. However the acronym FAMILY made up of the words “father and mother I love you” is too remote to be understood by the daughters of the petitioner apparently due to the one-sided upbringing of the single mother they have lived with for many years past. 18. It may be mentioned that the father assured the daughters before me that no matter the differences and fights he may have with their mother, he always loved and cared for them and would continue to do so in future. 18. It may be mentioned that the father assured the daughters before me that no matter the differences and fights he may have with their mother, he always loved and cared for them and would continue to do so in future. The father also stated to Court that his daughters know his contact number and address which he has not change and which he shall not change in future so that if in future they changed their minds and desired to meet their father they would be fully able to do so. This change of attitude may ring a bell in them in future. Indeed, children will see you by what you live; Than by what you say. 19. There is nothing shown to Court to see how the petitioner would be disentitled in law to the custody of his daughters except their vehemence in not meeting the father. However in view of such vehemence, coupled with their age, the entire effort as counselling would be whittled down and would not be worth embarking upon. In view thereof the observation of the learned Judge in the impugned order with regard to the access to be given to the father to his 2 daughters is seen to be well reasoned. 20. Under the circumstances of this case no specific order of access to the daughters need be passed. Hence to that extent order dated 31st March, 2011 does not suffer from any patent irregularity and this writ petition, which is to that extent, must stand dismissed.