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2020 DIGILAW 2198 (KAR)

Rajeev Giri v. Ekta Singh

2020-11-05

ARAVIND KUMAR, SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Aravind Kumar, J. - This contempt proceeding has been initiated alleging wilful disobedience of the order dated 14.03.2019 in W.P. No.2487/2019 [GM-FC]. 2. We have heard Smt. Ankitha G. Shelke, learned counsel for complainant and Sri. Omar Shariff, learned counsel for accused. Perused the records. 3. This is a classic case where fight between an estranged parents has resulted in minor child being torn on account of such fight. Complainant and accused got married on 23.10.2011 and were blessed with a daughter, who was named Mayra Giri and on account of certain disputes having arisen between the couple, it resulted in both staying apart and on account of custody of the minor daughter being with the mother, it triggered the father to file a petition under Sections 7 and 17 of the Guardians and Wards Act, in G & W.C. No.128/2018 seeking permanent custody of the minor child. An interim application in I.A. No.10 was filed by the complainant/father in the said proceedings for custody of the minor child during the pendency of the proceedings. Same was opposed to, and Family Court by its order dated 15.12.2018 though rejected said application, granted visitation rights/parenting time to the complainant/father on 1st and 3rd Saturdays of every month from 11.30 a.m. to 3.30 p.m. at Bangalore Mediation Centre [hereinafter referred to as BMC for short] in respect of the minor daughter. Accused/mother was directed to bring the child to BMC on 1st and 3rd Saturdays of every month and to handover the child to the complainant/father at 11.30 a.m. and complainant/father was directed to return the child at 3.30 p.m. after exercising his visitation rights/parenting time. This order came to be assailed in W.P.No.2487/2019 [GM-FC] by accused/mother. Learned Single Judge after considering the rival contentions, by order dated 14.03.2019, disposed off the writ petition by modifying the order of the Family Court with the following directions: 6. In view of the aforesaid submissions and the facts of the case, the order dated 15.12.2018 passed by the Family Court is modified and it is directed that the petitioner shall handover the custody of the minor daughter to the respondent at 11.30 a.m. on 06.04.2019 and thereafter on every Saturday in the months of April and May 2019 at a mutually agreed place. At 3.30 p.m. the custody of the child shall be handed over to the petitioner by the respondent. 4. At 3.30 p.m. the custody of the child shall be handed over to the petitioner by the respondent. 4. It is this order which is alleged to have been disobeyed by the respondent wife and as such, present proceedings have been initiated by filing their contempt petition. 5. Reply statement has been filed by respondent however denying the averments made in the complaint and contending that child had refused to go with the complainant despite every attempt made by the accused. It is also stated that accused had taken the child to Gopalan Mall on Old Madras Old on 6th April 2019 in compliance of order dated 14.03.2019 and complainant was accompanied by his father, mother and sister and the moment child saw them it started screaming and crying. She has further alleged that child had no love and affection and bonding with the complainant-father and is fearful of the complainant. On the advise of the people gathered at the Mall, accused is said to have taken back the child to the house. She has further contended there was rude and abusive behaviour exhibited by the complainant. The photographs which have been produced along with reply would depict that the child is in a fix or in other words, it is in a confused state of mind and is looking at the parents shockingly. No good sense seems to have been prevailed on the parents to reconcile with the situation keeping in mind the paramount interest of the child. 6. This Court having noticed these facts thought fit to bridge the gap that has crept between father and mother which has resulted in the child being a victim. Hence by order dated 29th September 2020, this Court appointed Sri.Sandeep S, Advocate of Bengaluru Bar as Court Commissioner to monitor the visitation rights of the complainant. 7. Pursuant to the order dated 29th September 2020, visitation right has been accorded by complainant on 3rd October 2020 and Court Commissioner had filed a report on 15th October 2020 which was taken note of by this Court by order dated 16th October 2020 and it was observed by us as under :- Pursuant to our order dated 29.09.2020, visitation right of complainant with his minor child is said to have taken place as per report submitted by Court Commissioner. It is stated thereunder that on 03.10.2020, child was in the company of the father and initially it was reluctant, but later on there was a cordial atmosphere and child was seen playing with both father and mother at the designated place. This would clearly indicate that on account of child not being in the company of father for long time, it was initially reluctant to go with father but subsequently, it was not only in joyful mood but was also attracted to toys/dolls offered by the complainant, though it did not prefer to touch them obviously because of fear of mother who was watching the entire activity and also recording the same, which we highly deprecate. While considering visitation rights, courts would keep in mind the interest of child as paramount since fight between the parents would drive the child to undergo unsurmountable trauma. This is a classic case where on account of fight between parents, child is not only traumatized but is under lot of stress. The very fact that child was in playful mood after sometime and the roses offered by father/mother was also decorated on its head would clearly indicate that child was willing to adjust to the company of both and yet the gazing eyes of mother who was supervising the visitation activity through her watchful eyes and recording the same probably prevented the child to exhibit its love towards the father. No love is left between petitioner and respondent. Both are stated to be doctors and wisdom has to dawn on them. In the instant case, in light of report of Court Commissioner, which we have perused and satisfied that in the absence of mother, child would definitely be comfortable and cordial with its father and only on account of long gap, child seems to have lost the cordial link with its father, further visitation as ordered requires to be continued. 8. Further visitation was granted and it was ordered to take place on 17th October 2020 and Court Commissioner was directed to supervise the visitation rights. The report filed by the Court Commissioner dated 2nd November 2020 has been perused by us and reading of the said report would indicate that respondent-wife was being hesitant and not creating conducive atmosphere but on the other hand, showing a defiant attitude. The report filed by the Court Commissioner dated 2nd November 2020 has been perused by us and reading of the said report would indicate that respondent-wife was being hesitant and not creating conducive atmosphere but on the other hand, showing a defiant attitude. In fact, the Commissioner had reported that minor child though not prepared to talk to the father, it had kept eye contact with him and eatables as well as toys and new cloths offered by the father was not accepted but on the other hand, eatables offered by the mother was accepted, which is a pointer to the fact that the child being in the constant company of the mother and under her supervision, guidance and tutelage, obviously would be reluctant to talk with the father immediately. In fact, Commissioner has noted that repeated attempts by the complainantfather to communicate with the child resulted in a high level of energy being expressed by the child and it started to walk and run around the premises of the ground floor at the designated place viz. Amoeba Sports, Church Street, off Brigade Road, Bengaluru. In fact, the child also seems to have expressed keenness in watching the photographs and videographs shown from I-pad of complainant which were taken when she was two year old and after watching the same, child is said to have walked around and also started to dance. This would also clearly indicate that child is not to be averse to be in the company of the father. 9. It is needless to state for healthy, physical and mental development of the child, love, care and affection of both parents is a must. Tutoring of child by either of the parents not to exhibit love or affection to either of them would adversely affect the psychology of the child and it may result in the development being hindered. There can be no doubt that all children require love and affection of both the parents. But, in these fast changing society where cordial atmosphere of the family having taken a backseat on account of the egoistic approach of the parents has resulted in children being affected and the net result is child being deprived of growing like any other normal child. But, in these fast changing society where cordial atmosphere of the family having taken a backseat on account of the egoistic approach of the parents has resulted in children being affected and the net result is child being deprived of growing like any other normal child. By the time the parents would realize this fact, much water would have flown down the bridge and it may result in the child being placed in an irretrievable position or in other words, the child after having lost that valuable parental love at the tender age cannot be put back. 10. In the instant case, the Court Commissioner s report would clearly indicate that child though was pretending to be sleeping on the lap of her mother, was watching the photos from the I-pad shown by her father at the time of visitation rights. In fact, the Court Commissioner in conclusion has opined thus : 12. By the end of the meeting it was observed the child was joyful, playful, laughing and was filled completely with energy. It was also observed that the child was comfortable with her father s touch while she was running around and dancing. The child didn t cry nor shout. By this moment only few minutes was left for the petitioner. The petitioner offered xxxxxxx left the premises 11. The above fact would clearly indicate there is good bonding between the father and the child and not ignoring the fact that child also being comfortable with the company of the mother. Keeping the aforesaid facts in mind, we are of the considered view that continuation of proceedings would be of no consequence and it would not enure to the benefit of either of the parties particularly, when factual aspects alleged in the complaint having been traversed to by the respondent denying the same and same being disputed questions of fact. Even otherwise, custody of the child being both sociological and psychological issue and also an emotional issue, it would be apt and appropriate only to observe that the pending two interlocutory applications viz. I.A.3 and I.A.15 in G and WC No.128/2018 may be considered by the Family Court expeditiously and preferably within five days from today this proceedings required to be given a quietus. I.A.3 and I.A.15 in G and WC No.128/2018 may be considered by the Family Court expeditiously and preferably within five days from today this proceedings required to be given a quietus. The learned Trial Judge shall also take note of the above observations and pass appropriate orders either for granting custody of minor child to the father or refuse to grant custody and it would also be open to the Family Court Judge to consider the prayer of granting visitation rights as it deems fit keeping in mind the order passed on 14th March 2019 in W.P.No.2487 of 2019. 12. With these observations, we close the contempt proceedings. All pending applications stand consigned to records.