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2024 DIGILAW 188 (TS)

Tejuswini Chowdhury v. Kiran Raju Penumacha

2024-03-13

K.LAKSHMAN, P.SREE SUDHA

body2024
JUDGMENT : (K. Lakshman, J.) Heard Mrs. Indira Jaisingh, learned Senior Counsel representing Mr. K. Manoj Reddy, learned counsel for the appellant and Mr. S. Niranjan Reddy, learned Senior Counsel representing Mr. P. Vamshi Krishna, learned counsel for the respondent. 2. This appeal is filed by the appellant - wife under Section - 19 (1) of the Family Courts Act, 1984 challenging the order dated 19.01.2024 in E.P. No.7 of 2023 in F.C.O.P. No.421 of 2021 passed by learned Judge, Principal Family Court - cum - XIII Additional Metropolitan Sessions Judge, Hyderabad. FACTS: 3. The marriage of the appellant with respondent was performed on 15.04.2012 as per Hindu rites and customs, and it is an arranged marriage. They were blessed with a male child, namely Suraveer Penumacha on 11.08.2014. Thereafter, disputes arose between them. They have decided to obtain decree of divorce by way of mutual consent. i) Therefore, they have filed a petition under Sections - 13B and 26 of the Hindu Marriage Act, 1955, vide F.C.O.P No.421 of 2021 seeking divorce by mutual consent dissolving their marriage, and to grant permanent custody of the minor child on the ground of incompatibility and in view of differences of opinion and lifestyle. ii) Vide order and decree, dated 02.09.2021, learned Family Court allowed the said petition and the marriage between the appellant and the respondent solemnized on 15.04.2012 was dissolved by granting decree of divorce by mutual consent. Permanent custody of the minor child was granted to the appellant herein and the respondent has interim custody rights during weekends with prior intimation. iii) There is no challenge to the said order and it attained finality. iv) The respondent had filed an Execution Petition vide E.P. No.7 of 2023 under Rule 141 (2) Civil Rules of Practice read with Order - XXI, Rule 11 of the Code of Civil Procedure, 1908 and Section - 7 of the Family Courts Act, 1984, seeking a direction to the appellant herein, judgment debtor therein, to produce the minor child for implementation of interim custody of the minor child to the respondent, decree-holder therein as per the order and decree, dated 02.09.2021 in FCOP No.421 of 2021 and also to appoint an Advocate Commissioner to implement the said order. v) On 21.04.2023, learned Family Court passed the following order in the said E.P. “A Dhr/father present. Jdr/mother present. v) On 21.04.2023, learned Family Court passed the following order in the said E.P. “A Dhr/father present. Jdr/mother present. The minor child namely master Suraveer, aged 8 years, was produced before this court. On interaction he orally complained that the father is not spending much time with him during the visitation hours as such he is facing inconvenience. Upon hearing both parties herein, in camera and as well as their counsels, a temporary arrangement is made with a view to enable the parties to come to an amicable settlement regarding the visitation rights granted to the father. In view of the up coming summer vacation and by considering the vacation of the child, it would be just to allow the child to spend time with his father for development of parent child bondage in his best interest and welfare. Hence, the following arrangement is made for the period commencing from 26.4.2023 to 14.06.2023. The Jdr/mother is directed to take the child to Park Hyaat Hotel, Hyderabad on 29.4.2023 & 30.4.2023 (Saturday and Sunday) and the Dhr/father shall spend time with the child from 10 am, to 9 p.m., on the respective days and he is directed to handover the child to the mother after 9 p.m., Further the father is directed to enjoy visitation in the similar manner on 6th May and 7th May and on 13th May. From 14th May to 27th May, mother can take the child for vacation i.e., for two weeks and she is directed to take the child to the hotel promptly on 28th May, by 10 am., enabling the father to enjoy his visitation upto 9 p.m., on that day. Further the father will have his visitation on 3rd and 4th June, at the said Hotel and also on 10th and 11th June, with the above arrangement. As the father agreed to bear the Hotel Expenses for himself, the child and the Jdr/mother he is directed to bear the entire expenses for the above period of his visitation and he is also directed to book a separate room in the hotel for stay of Jdr/mother during the visitation in the day timings. As he expressed that the child may not move freely in the presence of mother, the person namely Bolar (care taker of the family of jdr/mother) is permitted to accompany the child during the visitation timings of father in that Hotel. As he expressed that the child may not move freely in the presence of mother, the person namely Bolar (care taker of the family of jdr/mother) is permitted to accompany the child during the visitation timings of father in that Hotel. However, the said care taker of the child shall not intervene and cause any inconvenience either to the child or to the dhr/father in enjoying their visitation hours at that Hotel. With these directions both parties are directed to enjoy the visitation as per the above arrangement between them and any disobedience of the directions the concerned party will be liable for initiation of contempt proceedings against them. Hence, call on 14.6.2023.” vi) Again, on 19.07.2023, learned Family Court passed the following order: “Petitioner present. Respondent absent. At request for amicable settlement by next date. In the mean time, the respondent/mother shall permit the child to talk to petitioner/father for every day for half an hour i.e., from 007.00 to 09.30 pm. Hence, call on 07.08.2023.” vii) Thereafter, on 11.08.2023, learned Family court passed the following order: “Both parties present along with their counsels. Minor child namely Suraveer Penumatcha, aged 9 years, present and on enquiry in the presence of his parents and counsels, he submitted that he is willing to go to his fathers house on every Sunday and spend time with him from 4.00 pm. to 6.00 p.m. He further submitted that, he wants to go to his fathers house with the help of their helper who would be dropping the child at the house of the father by 4.00 p.m. and the helper can stay in that house premises till the completion of visiting hours and thereafter to take back the child to his mothers house. The respondent/mother is directed to not to go the house of petitioner/father, either for dropping or picking up the child and she can only take the assistance of the helper for dropping or picking up the child. The respondent/mother is directed to not to go the house of petitioner/father, either for dropping or picking up the child and she can only take the assistance of the helper for dropping or picking up the child. As the petitioner/father submitted that he wants to celebrate the birthday party of the child at his residence on 13.08.2023, the respondent/ mother is directed to send the child to the house of the father by 4.00p.m. with the aid of helper and to pick him back after 6.00 p.m. This arrangement is made for a period of two months and both the parties should co-operate with each other in implementing the visitation rights without causing any inconvenience to the child. Call on 13-10-2023.” viii) On 17.11.2023, learned Family court passed the following order: “Both the parties and their counsel are present. Minor child by name Suraveer is produced by judgement debtor for interaction. During the course of interaction the minor child in the chamber, he stated that he does not want to go to his father and that he is nothing to do with him, as he is ruining his life and that during his visitation his father and grand father do not take care of him and that his father will be busy with his friends and that only his grand mother and one of the staff members of the respondent take care of him. The minor child further stated that he is happy with his mother who takes care of him. Ex.P1 to P15 are marked on behalf of the Decree holder and Ex.R1 to R37 are marked on behalf of the judgement debtor. E.A.Nos. 13/2023, 20/2023 and 23/2023 are dismissed as not pressed. For further hearing, call on 24.11.2023. E.A.Nos.13/2023, 20/2023 and 23/2023 Both parties are present and their counsel are present. Counsel for petitioner filed a memo to close the petition. Counsel for respondent reported no objection for it. E.A.Nos. 13/2023, 20/2023 and 23/2023 are dismissed as not pressed. For further hearing, call on 24.11.2023. E.A.Nos.13/2023, 20/2023 and 23/2023 Both parties are present and their counsel are present. Counsel for petitioner filed a memo to close the petition. Counsel for respondent reported no objection for it. Accordingly this petition is closed.” ix) During pendency of the aforesaid E.P., the appellant herein had filed an Interlocutory Application on 03.10.2023 vide I.A. No.863 of 2023 in FCOP No.421 of 2021 under Section - 26 of the Hindu Marriage Act, 1955 read with Section - 10 of the Family Courts Act, to modify the order and decree dated 02.09.2021 in FCOP No.421 of 2021 pertaining to visitation rights of the child during weekends going to the respondent till the child recuperates and comes out of the situation. x) Vide impugned order dated 19.01.2024, learned Family Court allowed the said E.P. and appointed Ms. Venkateshwari, Advocate as an Advocate Commissioner for implementation of the order and decree dated 02.09.2021 in FCOP No.421 of 2021 with regard to interim custody of the minor child granted to the respondent herein, decree holder therein, during the weekends with prior intimation. Learned Family Court directed the Advocate Commissioner to collect the minor child from the appellant herein, judgment debtor therein at 6.00 p.m. on every Friday and handover him to the respondent herein and collect him from the respondent herein at 6.00 p.m. on every Sunday and handover him to the appellant herein safely under intimation. Challenging the same, the appellant herein preferred the present appeal. 4. Both Mrs. Indira Jaisingh, learned senior counsel appearing for the appellant and Mr. S. Niranjan Reddy, learned senior counsel appearing for the respondent made their submissions extensively, and this Court gave thoughtful consideration to the same. CONTENTIONS ON BEHALF OF THE APPELLANT: 5. Mrs. Indira Jaisingh, learned senior counsel contended as follows: i. The Family Court allowed the E.P. keeping I.A. No.863 of 2023 filed by the appellant herein seeking modification of the order and decree dated 02.09.2021 in FCOP No.421 of 2021. Thus, the Family Court committed procedural irregularity; ii. Though a specific contention is raised with regard to maintainability of the very EP itself, learned Family Court failed to consider the same. No finding was given on it; iii. Thus, the Family Court committed procedural irregularity; ii. Though a specific contention is raised with regard to maintainability of the very EP itself, learned Family Court failed to consider the same. No finding was given on it; iii. Learned Family Court passed orders on 21.04.2023; 19.07.2023 and 11.08.2023 reducing visitation time granted to the respondent - father on account of respondent’s behavior and child’s opinion. There is no challenge to the said orders. Even then, learned Family Court allowed the said EP only on the ground that it cannot go beyond the decree dated 02.09.2021 in FCOP No.421 of 2021; iv. Learned Family Court failed to consider best interest of the child and treated the EP filed by the respondent as an EP in a money decree or a commercial dispute; v. Learned Family Court having interacted with the minor four (04) times, ignoring the same, allowed the said EP only on the ground that it cannot go beyond the decree. The impugned order is contrary to the opinion of the child during interaction; vi. Learned Family Court failed to consider that the visitation rights is a temporary arrangement made under existing circumstances; vii. There are serious allegations against the respondent that he consumes prohibited drugs, like cocaine. A case in Crime N o.226 of 2022 was registered against the respondent by Banjara Hills Police Station for the offences punishable under Sections - 8 (c), 22 (b) and 29 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985. (Ex.R27 is the copy of FIR); viii. Learned Family Court failed to consider the child counselor’s report which specifically identifies the disturbed emotional state of the child which is triggered by the respondent - father; ix. The respondent cannot raise issues with regard to the custody of the child in an execution petition and the mechanism for custody related rights is prescribed in the Guardian and Wards Act; x. The Advocate Commissioner appointed by learned Family Court is a stranger to the child and is not an expert in child services. Without considering the said aspects, learned Family Court appointed the Advocate Commissioner; and With the aforesaid submissions, she sought to set aside the impugned order. Without considering the said aspects, learned Family Court appointed the Advocate Commissioner; and With the aforesaid submissions, she sought to set aside the impugned order. xi) In support of her contentions, learned senior counsel placed reliance on the decisions in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 and Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 . CONTENTIONS ON BEHALF OF THE RESPONDET: 6. On the other hand, Mr. S. Niranjan Reddy, learned Senior Counsel supported the impugned order contending as follows: i) Learned Family Court cannot go beyond the decree; ii) There was no issue with regard to the visitation rights of the child for a period of four (04) months from 02.09.2021. Thereafter, the appellant started making false allegations; iii) There is no challenge to the order and decree dated 02.09.2021 in FCOP No.421 of 2021; iv) I.A. No.863 of 2023 was filed by the appellant at a belated stage i.e., 03.10.2023; v) The appellant failed to adhere to the order and decree dated 02.09.2021 in FCOP No.421 of 2021. Therefore, the only option left to the respondent is filing an execution petition and accordingly he has filed the aforesaid E.P. in accordance with law; vi) Since the appellant is not co-operating in implementation of the impugned order, therefore, he has filed a petition seeking police aid. However, the same was returned and he is not going to resubmit the same considering the fact that the dispute is with regard to the visitation rights of a minor child; vii) The appellant cannot record conversation between the minor child and Advocate Commissioner. It is contrary to the impugned order. However, the same was returned and he is not going to resubmit the same considering the fact that the dispute is with regard to the visitation rights of a minor child; vii) The appellant cannot record conversation between the minor child and Advocate Commissioner. It is contrary to the impugned order. The appellant tutored the minor child; viii) On consideration of the said aspects, vide impugned order dated 19.01.2024, learned Family Court allowed the said E.P. There is no error in it; ix) In support of his contentions, learned senior counsel placed reliance on the decisions in Harsha Tipirneni v. Pooja Tipimeni, 2021 (1) ALD 608 ; Amyra Dwivedi (minor) through her mother, Pooja Sharma Dwivedi v. Abhinav Dwivedi, (2021) 4 SCC 698 ; Kinri Dhir v. Veer Singh, 2022 SCC OnLine Del.816; C. Sangeeta Devi v. Chilambi Venkata Laskhmidhar, 2021 SCC OnLine TS 128; Vivek Singh v. Romani Singh, (2017) 3 SCC 231 ; Ruchika Mazumdar v. Himanshu Mitra, 2023 SCC OnLine Del.4680; Susha v. Anandan, 2023 SCC OnLine Ker.3204; Nooty Vasishtra Venkateshwarlu v. Nooty Sindhu Sharma, 2020 SCC OnLine TS 522; Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67 ; Meenakshi Saxena v. ECGC Limited, (2018) 7 SCC 479 ; Topanmal Chhotamal v. Kunomal Gangaram, 1959 SCC OnLine SC 22; Sanwarlal Agrawal v. Ashok Kumar Kothari, (2023) 7 SCC 307 ; and Surender v. Vijay Singh, 2015 (1) ILR (P&H) 18. ANALYSIS: 7. The aforesaid facts would reveal that the appellant and the respondent have filed the aforesaid FCOP No.421 of 2021 before the Family Court under Sections - 13B and 26 of the Hindu Marriage Act, 1955 seeking dissolution of marriage by mutual consent and for custody of the minor child. It is not in dispute that the minor child was born on 11.08.2014, and he is 9½ years at present. Vide the order and decree dated 02.09.2021, learned Family Court allowed the said FCOP No.421 of 2021 dissolving the marriage of the appellant with the respondent by mutual consent and granted visitation rights to the respondent during weekends with prior intimation. In fact, it is a consent decree. Perusal of record would reveal that there was no issue with regard to the visitation rights of the minor child to the respondent - father for a period of four (04) months from 02.09.2021. In fact, it is a consent decree. Perusal of record would reveal that there was no issue with regard to the visitation rights of the minor child to the respondent - father for a period of four (04) months from 02.09.2021. According to the respondent, the appellant abruptly terminated the said contract between the minor child and the respondent. The respondent made many attempts to gain access to the minor son, but the appellant ensured that it did not materialize. i) Thereafter, the respondent had filed the aforesaid execution petition on 06.02.2023. There is no mention in the said execution petition that the appellant herein did not extend visitation rights in compliance with the order and decree dated 02.09.2021 in FCOP No.421 of 2021. The dates and month etc., are not specifically mentioned. The appellant herein had filed counter in the said execution petition making serious allegations against the respondent herein that he is a drug addict and addicted to alcohol. He was called by his friends as a Drug lord and Playboy. Therefore, the minor boy was not comfortable with the father during visitation rights. He never spent time with the minor child. She has also narrated certain incidents that were took place in October/November, 2022, 22.11.2022 etc. However, the respondent herein has filed reply to the said counter affidavit. ii) The appellant herein had filed an Interlocutory Application vide I.A. No863 of 2023 on 03.10.2023 seeking to modify the order and decree dated 02.09.2021 in FCOP No.421 of 2021 pertaining to visitation rights of the minor child during weekends. She has narrated several incidents and she made serious allegations against the respondent herein. Therefore, according to her, the order and decree dated 02.09.2021 in FCOP No.421 of 2021 has to be modified to the extent of visitation rights till the child recuperates and comes out of the situation. It is a lengthy affidavit consists of 45 paragraphs. iii) It is relevant to note that in the aforesaid E.P. No.7 of 2023, learned Family Court has passed the aforesaid orders, dated 21.04.2023, 19.07.2023, 11.08.2023 and 17.11.2023. The learned Family Court also interacted with the minor child on four occasions and recorded the result of the interaction in the aforesaid orders. Basing on the said interaction, learned Family Court passed the aforesaid four orders. Considering the welfare of the minor child, learned Family Court made interim arrangement. The learned Family Court also interacted with the minor child on four occasions and recorded the result of the interaction in the aforesaid orders. Basing on the said interaction, learned Family Court passed the aforesaid four orders. Considering the welfare of the minor child, learned Family Court made interim arrangement. Vide order and decree dated 02.09.2021 in FCOP No.421 of 2021, visitation rights were given to the respondent during weekends with prior intimation. Thus, learned Family Court passed the aforesaid four (04) orders beyond the order and decree dated 02.09.2021 in FCOP No.421 of 2021. The said orders were passed as an interim arrangement. iv) As discussed above, learned Family Court passed the aforesaid four (04) orders pursuant to the interaction of the minor child. The appellant herein had filed the aforesaid I.A. No.863 of 2023 in FCOP No.421 of 2021 seeking modification of the order to the extent of visitation rights. Both the appellant and the respondent made serious allegations against each other. Without considering the said aspects, learned Family Court allowed the said E.P. No.7 of 2023 only on the ground that it cannot go beyond the decree. As discussed above, having passed the aforesaid four (04) orders which are beyond the order and decree dated 02.09.2021 in FCOP No.421 of 2021, learned Family Court cannot allow the said E.P. only on the ground that it cannot go beyond the order and decree. v) Vide order dated 17.11.2023, learned Family Court recorded the presence of the parties as well as their counsel and the minor child, interaction with him and marking Exs.P1 to P15 on behalf of decree-holder and Exs.R1 to R36 on behalf of the judgment debtor. Neither the appellant nor the respondent let in any evidence. There is no mention in the order dated 17.11.2023 as to whether the said documents were marked with consent. Though the appellant herein specifically contended that the EP is not maintainable, there is no finding by learned Family Court. vi) Thus, the aforesaid facts would reveal that learned Family Court committed procedural irregularity by allowing E.P. No.7 of 2023 vide impugned order dated 19.01.2024 without giving any finding with regard to maintainability of the EP, marking of the documents without mentioning that the same were marked with consent of the parties and deciding E.P. by keeping I.A. No.863 of 2023 pending. No doubt, the appellant herein had filed the aforesaid I.A. No.863 of 2023 in FCOP No.421 of 2021 only on 03.10.2023. The respondent did not file counter in the said I.A. Proceedings in E.P. are independent proceedings. But, at the same time, both the proceedings/issue in I.A. No.863 of 2023 and EP are one and the same. While deciding the same, learned Family Court has to consider the welfare of the child which is paramount consideration. Without considering the said aspects, learned Family Court allowed E.P. No.7 of 2023 on 19.01.2024 and appointed Ms. Venkateshwari, Advocate as Advocate Commissioner. Thus, there are procedural irregularities in the impugned order. vii) It is apt to note that the appellant herein has recorded the conversation between the Advocate Commissioner and the minor child which is contrary to the impugned order dated 19.01.2024. In fact, she should have restrained herself from recording the said conversation. If she has no confidence on learned Advocate Commissioner, she has to seek modification of the order passed by the Family Court. Instead, she has recorded conversation. viii) It is relevant to note that learned Family Court ordered appearance of the minor four (04) times in execution petition for interaction. The minor child is at tender age and he is 9½ years at present. Learned Family Court should have restrained itself from ordering appearance of the minor child four (04) times before the Family Court. Learned Family Court should have avoided the allegation of tutoring by the appellant herein. ix) There is no dispute that the minor child is 9½ years at present and it is a tender age. He requires love and affection, company and protection of both the parties. He has right to love and affection of both the parents. The appellant cannot be a guest in the life of the child. Executing Court cannot go beyond the order and decree. It cannot expand the decree. In a matter like this, while deciding the child custody petitions, Courts have to consider welfare of the child as paramount consideration. Child has a human right to have love and affection of both the parents. x) As discussed above, learned Family Court failed to consider the aforesaid aspects with regard to maintainability of EP, custody of the child, earlier orders dated 21.04.2023, 19.07.2023, 11.08.2023 and 17.11.2023. Child has a human right to have love and affection of both the parents. x) As discussed above, learned Family Court failed to consider the aforesaid aspects with regard to maintainability of EP, custody of the child, earlier orders dated 21.04.2023, 19.07.2023, 11.08.2023 and 17.11.2023. Learned Family Court decided the execution petition without deciding I.A. No.863 of 2023 in FCOP No.421 of 2021 filed by the appellant seeking modification of order and decree dated 02.09.2021 in FCOP No.421 of 2021 to the extent of visitation rights of the minor granted to the respondent. Thus, the impugned order is liable to be set aside. FINDING: 8. The present Family Court Appeal is accordingly allowed setting aside the impugned order dated 19.01.2024 in E.P. No.7 of 2023 passed by learned Judge, Principal Family Court - cum - XIII Additional Metropolitan Sessions Judge, Hyderabad. The matter is remanded back to learned Family Court with a direction to decide E.P. No.7 of 2023 afresh and I.A. No.863 of 2023 strictly in accordance with law by considering all the aforesaid aspects as expeditiously as possible, preferably within a period of one (01) month from the date of receipt of copy of this judgment. The respondent herein shall file counter in I.A. No.863 of 2023 without seeking adjournment, and both parties shall cooperate with learned Family Court in disposal of the said EP as well as I.A.No.863 of 2023. However, in the circumstances of the case, there shall be no order as to costs. As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.