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2025 DIGILAW 544 (MAD)

E. N. Dinesh Raj v. S. Vidhya

2025-01-27

V.LAKSHMINARAYANAN

body2025
ORDER : These two civil revision petitions challenge the orders passed by the learned Family Court Judge, Erode in I.A.No.8 of 2020 in FCOP No.32 of 2019 and I.A.No.5 of 2022 in G.W.O.P.No.116 of 2020 dated 26.05.2023. 2. The civil revision petitioner is the father of a minor child. For the sake of convenience the parties shall be referred to as father and mother. 3. The matrimony between the parties took place on 22.02.2013. From the wedlock, a child was born on 03.10.2014. Due to disputes and differences, the parties separated. The mother filed F.C.O.P.No.46 of 2017 on the file of the Family Court at Erode seeking divorce. Due to intervention of friends and family members, the divorce petition was withdrawn on 28.09.2017. Subsequently, the parties reunited only to separate again. 4. On an understanding arrived at between the parties, they presented FCOP No.32 of 2019 invoking Section 13 (B) of Hindu Marriage Act . A decree for divorce was also granted on 30.05.2019. For the purpose of this revision, we are not concerned with the other clauses of the agreement. The agreement, in so far as the child is concerned, is found under clauses 10, 12 & 13. Clauses 12 & 13 of the agreement are extracted as below:- 5. In order to prove this agreement, both the parties entered the witness box in F.C.O.P.No.32 of 2019. The mother filed the following proof affidavit. 6. The father too agreed to this arrangements and filed his proof affidavit which reads as hereunder:- 7. Relying upon the agreement filed by the parties, the Court recorded the agreement as well as the proof affidavit and passed a decree dissolving the marriage that had taken place between the father and the mother. 8. It is not in dispute for two months, thereafter, the father and the mother stood by the compromise that had entered into between them, vis-a-vis the child. Subsequently, mother did not permit the child to have access to the father. Hence, the father took out an application in I.A.No.4 of 2019 seeking to punish the mother for contempt. The mother also took out an application seeking modification of the agreement entered into between the parties regarding the right of visitation. This was in I.A.No.8 of 2020. The application in I.A.No.4 of 2020 came to be closed as not maintainable. Hence, the father took out an application in I.A.No.4 of 2019 seeking to punish the mother for contempt. The mother also took out an application seeking modification of the agreement entered into between the parties regarding the right of visitation. This was in I.A.No.8 of 2020. The application in I.A.No.4 of 2020 came to be closed as not maintainable. The application in I.A.No.8 of 2020 was allowed modifying the right of visitation of the father at the time of passing the decree to 3 rd Saturday of every month in Court premises from the period agreed between the parties between 11:00 a.m. to 12:00 p.m. till she attains majority. 9. As there was some reluctance with the mediators to facilitate the visitation of the father, the venue for visitation was changed to the premises inside the Court. The prayer of the mother seeking modification was granted by the trial Court by changing the visitation to the 3 rd Saturday of every month between 11:00 a.m. to 12:00 a.m. in the Court premises. Challenging the said order CRP.No.3623 of 2024 has come up before this Court. 10. Feeling aggrieved over the refusal of the mother to adhere to the agreement entered into between the parties for visitation, the father filed an application in GWOP.No.116 of 2020 on the file of the Family Court at Erode. Pending the disposal of G.W.O.P.No.116 of 2020, the father filed an application in I.A.No.5 of 2022 seeking interim custody of the child. He wanted the child to be handed over to him on Friday of every week at 6:00 p.m. with a direction to return the child to the mother at 6:00 p.m. on every Sunday. He also sought for telephonic access to the child on the other days. On account of certain developments which I shall refer during the course of this order, the mother filed an application in I.A.No.23 of 2023 seeking orders of the trial Court to cancel the visitation. By an order dated 13.07.2024, the Court agreed with the mother and cancelled the visitation rights modifying it to one of interaction between the father and the child via video conferencing. As that order came to be passed pending the civil revision petition, the father has taken out an application in CMP.No.22039 of 2024 seeking to amend the prayer in the civil revision petition. 11. As that order came to be passed pending the civil revision petition, the father has taken out an application in CMP.No.22039 of 2024 seeking to amend the prayer in the civil revision petition. 11. I heard Mr.Vignesh Venkatachalam for the civil revision petitioner and Mrs. Chithra Sampath, learned Senior Counsel for M/s.Chennai Law Associates. 12. In so far as the civil miscellaneous petition seeking amendment is concerned as the order came to be passed on 10.07.2024, as that will have implications on the main order itself, the civil miscellaneous petition is ordered. The amendment sought for by the civil revision petitioner is granted. 13. Mr.Vignesh submits that the father and the child spent quality time during June and July 2019. Subsequently, alleging that the father had not stuck to the agreement entered into between the parties, he states that the mother withheld the society of the child from the father. 14. The grounds that the mother had given are 1. The father cannot exercise right of visitation without his parents. 2. The father had not settled the loans and discharged the guarantee given by the wife during the subsistence of the marriage. 3. The father had refused to sign the application seeking renewal of the Australian Passport and Birth Certificate that had been issued to the child and 4. Finally the father and his parents had given the child unhealthy and hazzardours food, while exercising the right of visitation, in the house of one of the mediators agreed to as per the agreement between the parties. 15. He states that the father has lot of love and affection for the child as she is his first born. He states that the entire dispute arose due to the unilateral decision of the mother to withdraw the access of the child from the father. He states that the plea of the mother that parents should accompany the father at the time of exercising the visitation was rejected by the trial Court itself. He states that the lower Court and the trial Court had imposed an impossible condition on the father to prove that there were no loan or guarantees taken over the property or the person of the mother. He states that the lower Court and the trial Court had imposed an impossible condition on the father to prove that there were no loan or guarantees taken over the property or the person of the mother. Qua the passport, he urges that the Australian passport was issued to the child on account of the fact the child was born in Australia and when the couple were living together they had decided to settle in India, hence, he decided not to counter sign the application. 16. He adds the order of the learned trial Judge in granting the father only video conferencing rights is not proper. Hence, he pleads the revisions be allowed and he should be granted the rights of visitation pending disposal of the G.W.O.P. 17. Per contra, Mrs.Chithra Sampath points out that the father has does not have the best interest of the child and has behaved in a manner which disqualifies him from seeking visitation. She points out that since the father did not counter sign the passport application, the mother had to move heaven and earth including this Court and the Australian authorities in order to obtain a Birth Certificate. With great efforts, she applied to the Australian Government to obtain the passport. Unfortunately, the application was rejected since the father did not counter sign the same. She adds that during the course of the proceedings in the trial Court, the father had brought about emotional stress and trauma on the child. She draws my attention to the complaint that was lodged by the father with the Child Welfare Committee on 21.07.2023. She points out in this complaint the father had alleged that the child had suffered certain acts, at the hands of the driver, employed by the mother's family. Due to this complaint, the Child Welfare Committee summoned the mother and the child to their office and had conducted an enquiry over a long period of time. During the course of enquiry, the child had interacted and she had mentioned to the officials that she does not like spending time with the father. She relies upon the complaint to show that the father is not interested in the child but wanted to create records in order to show that the child is at danger, if she continues to reside with the mother. She relies upon the complaint to show that the father is not interested in the child but wanted to create records in order to show that the child is at danger, if she continues to reside with the mother. Following this complaint, the child was enquired not once but twice resulting in absolute trauma for the child. 18. In reply, Mr.Vignesh Venkatachalam states that the father had lodged a complaint on account of the fact, during the time of visitation with the child at the centre attached to the Erode Family Court, the child had made a statement regarding “ a bad touch” that she suffered from. 19. In response, Mrs.Chithra Sampath states that nothing prevented the father from bringing this fact to the notice of the Court immediately. Instead he waited and lodged a complaint with the CWC which resulted in an extremely unhealthy situation for the mother and the child. She states that the mother and the father have moved on. The father, from his second marriage has begotten another child and that the child born to the parties to this litigation, has developed very good relationship with the second husband of the mother. Hence, she pleads that the order need not be revised and it has to be confirmed. 20. I have carefully considered the submission on both sides. 21. The relationship between the parties as well as the birth of the child and the agreement entered into between the parties on 20.01.2019 is not in dispute. The terms of visitation which had been agreed between the parties is on 20.01.2019 is also not in dispute. The fact that the father and his parents exercised right of visitation on two occasions, without any hindrance from the mother, is also not in dispute. 22. A reading of the affidavit filed by the mother in I.A.No.8 of 2020 makes me conclude that the mother had prevented the father having access to the child after July 2019 on the ground that he was unaccompanied by his parents. This is clear from paragraph No.3 of the affidavit. This prevention resulted in the father approaching one of the mediators to have the issues settled. It was in response to that letter that the mother came up with the plea of 1. lack of discharge of the guarantee 2. This is clear from paragraph No.3 of the affidavit. This prevention resulted in the father approaching one of the mediators to have the issues settled. It was in response to that letter that the mother came up with the plea of 1. lack of discharge of the guarantee 2. failure to hand over the Birth Certificate as well as the certificates and documents belonging to the mother 3. refusal to sign the passport renewal application 4. as the child is having special activities on the day, on which she agreed for visitation, as the child was refusing to go to Tiruchengode from Erode but she found that she is not in a position to stand by the custody agreement. 23. Curiously enough in the very same affidavit, she pleaded two important aspects. One that she is planning to approach the Court for judicial remedy and that till the judicial remedy on her plea of variation of visitation is granted, she is ever ready to comply with the agreement dated 20.01.2019 subject to the release of guarantee receipt of the documents said to have been executed by her and further, the father must be prevented from giving unhealthy and hazardous food to the child. This affidavit reveals that the mother was very well aware that if an order of the Court have to be modified, she would have to approach the Court for that purpose. The mother tacitly concedes she does not have the power to unilaterally cancel the visitation agreement or arrogate to herself the power to refuse to implement the decree to which she has consented to. 24. In so far as the guarantee is concerned, the trial Court had rejected the plea, no records had been produced by the mother before the trial Court in order to show that the guarantees, allegedly issued by her for the father's business, were still alive. The trial Court committed an error in reversing the burden of proof and calling upon the father to prove that there were no guarantees. Law demands the proof of the positive. It is impossible for a person to give proof of a negative. Such being the position, the view of the learned trial Judge that the father did not give proof as regards the non existence of the guarantees, does not stand moving scrutiny. 25. Law demands the proof of the positive. It is impossible for a person to give proof of a negative. Such being the position, the view of the learned trial Judge that the father did not give proof as regards the non existence of the guarantees, does not stand moving scrutiny. 25. The 2 nd aspect that turns out of the letter that had been issued by the mother referred to by me above shows she was willing to comply with the visitation rights granted under the agreement dated 20.01.2019. She pointed out the following mistakes on part of the father. 1. refusal to sign the passport and 2. feeding the child with unhealthy and hazardous food. On the first point, I have to agree with Mrs.Chithra Sampath, that the father had been foolish not to sign the passport renewal application. Whether the child wanted to surrender its Australian citizenship or embrace Indian citizenship is a call which should have been taken by her on attaining majority. Unfortunately, the fight between the father and the mother, the father decided to exercise a right which he do not possess. Yet, I am not willing to hold the foolish act of the father against him by denying him the visitation rights. Citizenship can always be regained at a later date but the time that the father gets to spend with a child cannot be regained, once it has gone by. 26. During the course of the proceedings, I wanted to get an expert opinion whether the child is suffering from any issues. The child was directed to be produced before the Child and Adolescent Psychiatrist at Coimbatore. The mother, in obedience to the order of this Court produced the child before the Psychiatrist. The report of the Psychiatrist states that the child is perfectly normal. This shows, whatever trauma that the child would have undergone during the interaction with CWC members, does not exists any more. This shows the mother has put in extra effort in order to restore the child to her normalcy. This is a ground not to grant interim custody for the father as sought for by Mr.Vignesh. 27. In so far as the aspect on food is concerned, in case at a later date the father just in fact give “unhealthy and hazardous food” to the child, it can always be interfered with by the Court. This is a ground not to grant interim custody for the father as sought for by Mr.Vignesh. 27. In so far as the aspect on food is concerned, in case at a later date the father just in fact give “unhealthy and hazardous food” to the child, it can always be interfered with by the Court. For the purpose of this revision, I should note no pleading had been made by the mother to show what is the hazardous and unhealthy food that is alleged to have been given by the father to the child. Furthermore, even if there were no pleading, being a family dispute, I could have considered the plea had some evidence been shown before the Court. Both being non existence, I am not willing to entertain those pleas also. 28. Reading the entire paragraph No.3 of the affidavit filed by the mother in the Court below makes it clear that she wanted to prevent the father from having access to the child, when he came alone. Having agreed in her proof affidavit that the father can have an independent access, dehors the presence of his parents, it does not lie in the mouth of the mother to prevent the father from having access to the child. The grand parents, including the parents of the mother, would certainly have a lot of love and affection for the child. This can be no substitute for the love that a father will have towards his daughter. I should add here that the records reveals that the child has started addressing her mother's 2 nd husband as her father. This shows that there has been some alienation from the biological father and transfer of affection from that person to a third party. Such a transfer could not have been possible, if not, for some assistance in that regard by the mother. 29. In so far as the enquiry that was conducted by the CWC, Erode pending the litigation is concerned, I have to point out it is the statutory duty of the CWC to conduct an enquiry into any complaint that comes to it regarding the manner in which the child has been treated. By conducting an enquiry, CWC only discharged its statutory duties. By conducting an enquiry, CWC only discharged its statutory duties. The observation of the CWC that they are handing over the child to the mother does not make any sense for the CWC is not possess with the power to grant orders on guardianship. When the issues of guardianship have been settled by the Civil Court, CWC, at best would have conducted an enquiry as regards the allegations made in the complaint. I have to agree with Mrs.Chithra Sampath that the father could have approached the trial Court and pointed out the alleged mistreatment of the child. For whatever reason, he has chosen to approach the CWC. When multiple courses of action are available to a party and he chooses one of those course of action, he cannot be found fault for having chosen the course of action that he did. 30. Even the worst of the villans normally, would be a good father to his child. The Court always retains in itself the power to refuse the right of visitation to a mother or father. This power should be exercised only when the Court comes to a conclusion that the presence of a father in the environment of the child would be detriment to the interest of the child. 31. Apart from pointing out the skirmish that has taken place between the father and the mother, there has been no pleading other than the vague plea of 'unhealthy and hazardous food' given by the father to the child. The fact that the renewal of the Australian passport for the child has been refused is not a ground to refuse visitation rights. This is because the child has subsequently got Indian citizenship. 32. The view of the learned trial Judge by the 2 nd order passed on 10.07.2024 also does not stand scrutiny. This is because, the father is not a cartoon or a hero who appears in YouTtube channel to appear before the child on a video call and that too for half an hour once a month. The learned trial Judge failed to appreciate that G.W.O.P itself is maintainable only till the child attains majority. By the very nature of the order passed by the Court, an order of interim custody is liable to be changed at any stage of the proceedings. The learned trial Judge failed to appreciate that G.W.O.P itself is maintainable only till the child attains majority. By the very nature of the order passed by the Court, an order of interim custody is liable to be changed at any stage of the proceedings. By directing that the father will be entitled to interact with the child twice a month, for half an hour over a video call till she attains the majority reflects but the learned Judge has literally snuffed out not only the visitation right of the father but also his right to prosecute the very G.W.O.P proceedings. 33. If I were merely to set aside the order and restore the visitation in the Court premises, it would not suffice. It will not be in the interest of the child. The child has absolutely nothing to look forward to while visiting a Court hall or premises. The only persons who are beneficiaries of visiting the Court are the lawyers and Judges. The purpose of permitting visitation by a parent to a child not staying with him is to ensure that emotional bond is developed between the parent and the child. The environment in a Court hall or in a Court attached premises, in my view, is not conducive for developing such a bond. The child would not feel comfortable in a Court attached premises. 34. Unless and until the activities of a father are of such nature, like trying to remove the child from the custody of the mother, the Court should not order visitation inside the Court premises. The father should not be forfeited of his right to visit and get to know the child unless his actions are detrimental to the child as a whole. 35. In the facts of this case, I notice alienation of the child from her natural father. The action of the father not signing the passport papers is not so enormous to result in the forfeiture of that right. His complaint to the CWC is also one out of the concern that he has for the child. For these aspects, to order that the father will interact with the child only in video conferencing, in my view, is disproportionate and perverse. 36. In the light of the above discussion, I am inclined to modify the order of the learned trial Judge. For these aspects, to order that the father will interact with the child only in video conferencing, in my view, is disproportionate and perverse. 36. In the light of the above discussion, I am inclined to modify the order of the learned trial Judge. (a) The prayer of Mr.Vignesh that he be granted interim custody pending disposal of G.W.O.P stands rejected for the present. (b) The father will be entitled to visit the child at Reliance Mall, Erode between 10:00 a.m. to 1:00 p.m. on 2 nd and 4 th Sunday of every month. (c) In case, the child is not able to be brought on any one of the Sundays, the father will be entitled to a compensatory Sunday in the very same month. (d) The father shall not give the child any food which would be detrimental to her health. (e) At the time of exercising the visitation, the 2 nd wife of the father will not be permitted to accompany him. (f) As agreed upon between the parties on 20.01.2019, it is open to the father to see the child along with his parents. For the mere fact the parents do not accompany him does not mean, the mother should deny the right of visitation of the father. 37. Finally, the usual mantra. Whatever findings I have given during the course of this revision will not bind the parties or the Court at the time of disposal of the main G.W.O.P. In case there are any change in circumstances, it is open to the mother or to the father to file an appropriate application seeking modification of the order of visitation granted by this order before the trial Court. 38. Both the parties shall avoid in creating environment which affects the atmosphere of the child at the time of exercising the right of visitation. Mrs.Chithra Sampath states the mother will not accompany the child during visitation and that the maternal grand parents will bring the child to the Mall. They shall leave the child with the father so as to enable him to spend quality time with the child. They, shall however be within the earshot but shall not interfere with the right of visitation of the father. 39. They shall leave the child with the father so as to enable him to spend quality time with the child. They, shall however be within the earshot but shall not interfere with the right of visitation of the father. 39. Accordingly, the orders passed by the learned Family Judge, Erode in I.A.No.8 of 2020 in FCOP No.32 of 2019 and I.A.No.5 of 2022 in G.W.O.P.No.116 of 2020 dated 26.05.2023 and 13.07.2024 are set aside. The Civil Revision Petitions are allowed with the aforesaid directions. No costs. Consequently, connected miscellaneous petitions are also closed.