Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2074 (RAJ)

Gurmeet Singh v. Rekha Rathi

2019-07-31

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

body2019
JUDGMENT : Mohammad Rafiq, J. 1. This appeal on behalf of husband-appellant Lt. Col. Gurmeet Singh has been filed being aggrieved by order dated 11.01.2019 of the Family Court No. 3, Jaipur, dismissing his application filed for allowing him and his family members access to female child Nitmeher Kaur @ Feshika Singh. 2. Briefly stated, the facts of the case are that marriage of appellant-husband and respondent-wife was solemnized at Jaipur on 03.03.2014 as per Sikh customs and rites. It was second marriage of both. The respondent-wife has a 17 years old son from her first marriage. The appellant-husband was issueless from his first marriage. They remained together only for about 10 to 15 days. The respondent-wife filed a complaint on 16.04.2017 against the appellant-husband to the President, AWWA Central (Wife of Chief of the Army Staff, New Delhi, stating that the appellant-husband was not available at Jaipur during her difficult time and neglected her. On 15.05.2017 the appellant-husband and the respondent-wife were blessed with a daughter. The respondent-wife did not allow the appellant-husband to meet his daughter and therefore he filed a Petition on 20.04.2018 under Sections 9 and 25 of the Hindu Marriage Act, 1955 (for short, 'the Act of 1955') before the Family Court No. 3, Jaipur, for restitution of conjugal rights. Thereafter, the respondent-wife filed a complaint Mahila Police Station (East), Jaipur. A joint counseling was held between the parties on 18th and 23rd of April, 2018 and a compromise took place between them with the efforts of Mahila Surksha and Salah Kendra. Thereafter, the respondent-wife stayed with the appellant-husband at his place of posting in Kerala for ten days. After 13 days of returning from Kerala, the respondent-wife filed a first information report under Sections 498A and 406 of the Indian Penal Code alleging that the appellant-husband inflicted physical cruelty against her during her stay at Kerala. The appellant-husband tried to meet her newly born daughter but the respondent-wife did not allow and made false complaints. The appellant-husband ultimately filed an application before the Family Court for grant of visitation rights to enable him and his parents to meet the child. The Family Court, vide impugned order, rejected the application. Hence this appeal. 3. Heard learned counsel for the appellant-husband as also the respondent-wife. 4. Mr. The appellant-husband ultimately filed an application before the Family Court for grant of visitation rights to enable him and his parents to meet the child. The Family Court, vide impugned order, rejected the application. Hence this appeal. 3. Heard learned counsel for the appellant-husband as also the respondent-wife. 4. Mr. Rajeev Surana, learned counsel for the appellant-husband submitted that the appellant-husband is a Lieutenant-Colonel working in the Indian Army and is presently posted in an operationally active area of Rajori in Jammu & Kashmir. He has been awarded commendation card by army for his exemplary service twice. The respondent-wife is a doctor in sociology and is an affluent business woman based in Jaipur. She wants to deprive the child from fatherly love and affection. The respondent-wife, just before spate of litigation and false allegation, filed the complaint, referred to above, in which a compromise took place. She also filed false and frivolous F.I.R. with allegation of demand of dowry and cruelty, which was never levelled by her in earlier complaints. The investigation in the said F.I.R. has been stayed by the Supreme Court. 5. It is argued that the visitation rights to child have to be given to appellant-father as per mandate of Article 39(e) & (f) of the Constitution of India. It is a common practice among couples to use kids as pawns in the game of emotional chess. It amounts to absolutely irresponsible parenting to scar children emotionally post separation. The innocent child is being used as tools of vengeance. It is argued that the United Nations Convention on the Rights of the Child has made an effort to promote the basic needs of children as fundamental human rights. India along-with 193 countries has also agreed to undertake the obligations of the convention by ratifying to it as on December, 2008. India is a signatory to the Convention and has ratified the same. Article 51(c) of the Constitution of India clearly sets forth, inter alia, an obligation on the contracting States, to promote uniformity and predictability in the application of the Convention. Learned counsel in support of this argument has relied on a judgment of the Delhi High Court dated 19.03.2015 in AWAS Ireland Vs. Directorate General of Civil Aviation - Writ Petition (C) No. 671/2005. 6. It is argued that the impugned order is perverse and against the actual facts. Learned counsel in support of this argument has relied on a judgment of the Delhi High Court dated 19.03.2015 in AWAS Ireland Vs. Directorate General of Civil Aviation - Writ Petition (C) No. 671/2005. 6. It is argued that the impugned order is perverse and against the actual facts. It completely denies the visitation rights available to parents. The visitation rights and access to child is mandatory and an important right not only to the appellant-husband but is also a right of the child who is being deprived from fatherly love and moral and material support. It is argued that the reason of rejection of the visitation right in the impugned order is that the age of the child is about one-and-a-half-year and a child of this age even cannot speak and understand. This ground is not sustainable. This reasoning is wholly perverse because if the reason so given is accepted, no father would be able to meet or have access to his child who are young. Being young does not mean that visitation will be disallowed. The court below has clearly mixed the issue of custody and visitation. Distancing father from the infant child and vice-versa is cruel as the child needs to bond with the father from tender age. 7. It is argued that the next ground given by the learned court below is the alleged behaviour of the appellant-husband with the respondent-wife, which is not tenable in the eyes of law. The complaints were filed by the respondent-wife against the appellant-husband through her advocate to the Chief of Army Staff. The crux of the complaints was that the appellant-husband is a man of doubtful integrity and is threat to the nation and must be brought under strong disciplinary action. The complaints were examined by the senior officers who found that the same were ill-motivated and the allegation of torture or physical violence were found to be false. The allegations so made were overtly vague, frivolous, concocted and malicious. 8. It is argued that the next ground for rejection of the application given by the court below was the place of posting of the appellant-husband at a distant place in Jammu and Kashmir and settling down of his parents in Australia, which is also false. The allegations so made were overtly vague, frivolous, concocted and malicious. 8. It is argued that the next ground for rejection of the application given by the court below was the place of posting of the appellant-husband at a distant place in Jammu and Kashmir and settling down of his parents in Australia, which is also false. If this reason is allowed to stand then no army personnel who is serving in border area will be eligible to have access to their child. Can any Army Personnel be deprived access to his/her child on the ground that he is serving the country in remote border area? The later aspect that parents of the appellant-husband have also shifted to Australia is absolutely false because they had gone only for three months to visit their daughter. It is submitted that the parents of the appellant-husband visited Jaipur every month till January 2018 to meet their grand daughter. The respondent-wife refused to entertain them and after January, 2018 they were never welcomed by the respondent-wife and that she demanded money on account of expenses for their stay. The appellant-husband used to give Rs. 10,000/- on that account and also used to give Rs. 10,000/- for the daughter every month. 9. It is argued that the Family Court has not addressed the interest of the child and has recorded abstract finding on the question of father's right to access of child or child's access to non-custodian parent. It is next argued that the it is the fundamental right of the children to get love and affection from both the parents, right to quality of life and survival, and right to be cared, right to develop a sense of belonging, right to participate fully in the family, cultural and social life. Depriving love and affection of father, more particularly due to alienation of the child by the custodial parent and or denial of proper access to the appellant-husband non-custodial parent by the Family Court may have serious consequences caused in the later part of the child's life. 10. Per contra, Ms. Susan Mathew, learned counsel for the respondent-wife, opposed the appeal and submitted that the order refusing to grant visitation rights to appellant-husband being in the nature of interlocutory order cannot be granted in the appeal under Section 19 of the Family Courts Act, 1984 and thus the appeal is not maintainable. 10. Per contra, Ms. Susan Mathew, learned counsel for the respondent-wife, opposed the appeal and submitted that the order refusing to grant visitation rights to appellant-husband being in the nature of interlocutory order cannot be granted in the appeal under Section 19 of the Family Courts Act, 1984 and thus the appeal is not maintainable. The appellant-husband initially filed an application before the Family Court under the provisions of the Guardian and Wards Act, 1890 (for short, 'the Act of 1890'), for custody and guardianship of the child. He further filed an application seeking visitation rights for himself and his parents till the application for custody and guardianship is decided. It is thus clear that the relief sought by the appellant-husband was temporary in nature and the impugned order dated 11.01.2019 declining him visitation right is interlocutory in nature. Learned counsel, in support of this argument, has relied on a Division Bench judgment of Allahabad High Court in Smt. Varsha Lakhmani Vs. Hitesh Wadhva. 11. It is argued that neither the Act of 1890 nor Section 26 of the Act of 1955 provides any scope of appeal from the interim order. Express intention of the legislature is to be understood from its plain reading at first and in case any vacuum arose, the same is to be understood by the implied intention from such Act as well as parallel Act. In this case, neither the express intention nor the implied intention of the legislature speaks that an appeal can be preferred from the impugned order. 12. It is argued that the appellant-husband has relied upon some UN reports and guidelines issued by the Bombay High Court but the same have got no applicability as they do not have any binding effect and cannot be cited as precedents. In a dispute like the present one, the conduct of the parties seeking custody or visitation rights assumes significance keeping in view the welfare of the child. The appellant-husband from the beginning has been treating the respondent-wife with cruelty on all points. He even opposed the interim maintenance application filed for the maintenance of the child and has never shown any love and affection to the child. The appellant-husband from the beginning has been treating the respondent-wife with cruelty on all points. He even opposed the interim maintenance application filed for the maintenance of the child and has never shown any love and affection to the child. The child is below the age of two years and the endeavour of the appellant-husband is only to harass the respondent-wife and pressurize her to negotiate the terms and conditions of the divorce by demanding the custody of the child, with which no mother will agree. It is argued that the Supreme Court of India in numerous judgments has held that child-mother bonding is regarded as best for child's wholesome development and the custody of a breast feeding child should always remain with the mother against any reasons except that the mother is not of sound mind. The mother in the present case is taking care of the child alone since the day she was formed in her mother's womb. In this regard, learned counsel for the respondent-wife has relied on the judgment of the Supreme Court in Vivek Singh Vs. Romani Singh - (2017) 2 SCC 231. 13. It is submitted that the impugned judgment is well reasoned and valid as the Family Court had the occasion to witness and observe the conduct of the appellant-husband on each date, which has been bullying and fighting with the respondent-wife and pressurizing even her lawyer to leave the brief. All the letters and enquiry report relied by the appellant-husband have got no sanctity as various complaints were already made by respondent-wife against his seniors that they were out-rightly favouring him by issuing letters in his favour. The findings in the enquiries have been recorded by them without any proper enquiry. It is argued that the appellant-husband is very aggressive and short tempered in nature and has no control over his anger and can go to any extent to defeat those standing on his way. The appellant-husband has never performed his duties as husband and father and always ignored them. A person who never had any concern about the child has no right to claim the custody or even visitation right. It is therefore prayed that the appeal be dismissed. 14. We have given our anxious consideration to rival submissions of the parties and perused the material on record. 15. A person who never had any concern about the child has no right to claim the custody or even visitation right. It is therefore prayed that the appeal be dismissed. 14. We have given our anxious consideration to rival submissions of the parties and perused the material on record. 15. At the outset, we shall deal with the objection about maintainability of the appeal. We are not inclined to uphold the argument that the appeal against the order refusing to grant visitation rights would not be maintainable treating the impugned order interlocutory in nature. It is not disputed before us that the appellant-husband has filed a petition under the provisions of the Act of 1890 for custody of the child and he sought the visitation right by filing an application during pendency of the aforesaid petition. Till the question of custody is decided, the appellant-husband, being the father, requested for visitation right for himself as also his parents, i.e., the grand parents of the child. For this purpose, the impugned order finally determines their right by not permitting them to visit the child. 16. A perusal of the impugned order indicates that the learned Family Court was persuaded to reject the application of the appellant-husband claiming visitation right for himself and his parents mainly on three factors; the first is that the child is only one-and-a-half-year old and is unable to speak and understand anything; secondly, the abnormal behaviour of the appellant-husband as claimed by the respondent-wife; and thirdly, that the place of posting of the appellant-husband is in remote area in the Indian Army in Jammu and Kashmir. These factors, in our considered view, could not be cited as justified reason for refusing to grant visitation rights to the appellant-father. While it may be true that the child was one-and-a-half-year old when the impugned order was passed and now she is more than two years old, therefore by virtue of her age respondent-mother may argue that she is best entitled to claim her custody. But so far as the child is concerned, she is not only entitled to love and affection of the mother but also of the father and at the same time the father is also equally entitled to her love and affection. But so far as the child is concerned, she is not only entitled to love and affection of the mother but also of the father and at the same time the father is also equally entitled to her love and affection. Therefore, the fact that the daughter of the appellant-husband and the respondent-wife is only two years old could be a relevant factor for deciding the question of custody but this could not be a reason to completely deny the visitation rights to the appellant-husband, who is after all her father. Learned Family Court appears to have been unduly influenced by the fact of the appellant being posted in the Indian Army in Jammu and Kashmir region and his parents having gone to Australia. Serving the Indian Army cannot be considered as a negative factor. At the same time, if the parents of the appellant-husband had temporarily gone to Australia at the time when the impugned order was passed to meet their daughter on temporary visit, that also could not be a reason to completely deny them the visitation right, at least along with the appellant. 17. The Supreme Court in Roxann Sharma Vs. Arun Sharma - AIR 2015 SC 2232 , while dealing with the case of visitation right, considered the Black's Law Dictionary, according to which 'Visitation' means a non-custodial parent's period of access to a child. Visitation right means a non-custodial parent's or grandparent's Court ordered privilege of spending time with a child or grandchild who is living with another person, usually the custodial parent. Having considered the meaning of 'custody' in contra distinction to 'visitation' with reference to Black's Law Dictionary, the Supreme Court observed as under:- "....Black's Law Dictionary also defines 'Custody' as the care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. In terms of Black's Law Dictionary, Tenth Edition, 'Visitation' means a non-custodial parent's period of access to a child. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. In terms of Black's Law Dictionary, Tenth Edition, 'Visitation' means a non-custodial parent's period of access to a child. Visitation right means a non-custodial parent's or grandparent's Court ordered privilege of spending time with a child or grandchild who is living with another person, usually the custodial parent. A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit. In our opinion, visitation rights have been ascribed this meaning - In a dissolution or custody suit, permission granted to a parent to visit children. In domestic relations matters, the right of one parent to visit children of the marriage under order of the court." 18. We are therefore persuaded to allow the present appeal. The impugned order is set aside with direction to the Family Court to allow the appellant-husband, along with his parents (grand parents of the child) visitation right for maximum one hour at one go in the interval of at-least one month on the date of hearing fixed before it in the pending proceedings. It is made clear that the grandparents of the child would not be granted any independent visitation right but would be entitled to meet their grand daughter along-with the appellant-husband on the dates so decided by the Family Court. The Presiding Officer of the Family Court shall provide them a suitable place for meeting the child. The respondent-wife shall bring the child to the Family Court as per the direction of the Family Court. While the respondent-wife is expected to cooperate ensuring compliance of this order, the appellant-husband is directed not to engage in hot talks/altercation with the respondent-wife or her counsel and not disturb the orderly conduct of the court proceedings. If the behaviour and conduct of the appellant-husband is found to be obnoxious or objectionable by the Presiding Officer of the Family Court, he shall make a note of the same on record of the proceedings pending under Sections 9 and 25 of the Hindu Marriage Act, 1955. If the behaviour and conduct of the appellant-husband is found to be obnoxious or objectionable by the Presiding Officer of the Family Court, he shall make a note of the same on record of the proceedings pending under Sections 9 and 25 of the Hindu Marriage Act, 1955. If the Presiding Officer records such adverse reports for three dates, based on observation of the appellant-husband, the respondent-wife shall be entitled to move the Family Court for revocation of visitation right, which Court shall, after hearing both the parties, would be entitled to do. 19. We have granted visitation right to the appellant and his parents as per the aforementioned arrangement considering the bitterness in the behaviour of the parties towards each other seen in the court proceedings on past few dates. We however leave it open to the learned Presiding Officer of the Family Court to change the venue for granting visitation right to the appellant-husband and his parents, to any other venue as may be agreed upon between the parties or even at the residence of the respondent-wife keeping in view the tender age of the child, if she agrees for the same, on the dates on which the appellant-husband is required to attend the court proceedings. 20. This arrangement shall continue during the proceedings under Sections 9 and 25 of the Hindu Marriage Act, 1955, pending before the Family Court, which Court at the time of conclusion of those proceedings, shall be entitled to pass a fresh order for the manner in which visitation rights shall be allowed to the parties, depending on the outcome of the matter. 21. The appeal is accordingly allowed with no order as to costs.