Generation of FAMILY LAW PETITION
Name of the Court: Allahabad High Court
Details of Previous Court Orders, Facts, Background or Datewise Events: Visitation rights of the father to meet the daughter denied: The couple had married on 7th February 2006. A daughter was born on 10th January 2011. The couple divorced on 25th May 2023. The divorce was granted by the Allahabad Court. After divorce, the mother was given the custody of the daughter. The husband is not allowed to meet his daughter even though the court has passed a visitation order permitting him to meet the daughter once a week for one hour. The petition is regarding the visitation right of the father.
Details of Previous Court Orders, Facts, Background or Datewise Events: Visitation rights of the father to meet the daughter denied: The couple had married on 7th February 2006. A daughter was born on 10th January 2011. The couple divorced on 25th May 2023. The divorce was granted by the Allahabad Court. After divorce, the mother was given the custody of the daughter. The husband is not allowed to meet his daughter even though the court has passed a visitation order permitting him to meet the daughter once a week for one hour. The petition is regarding the visitation right of the father.
PET
SCJ
HCJ
Draft of FAMILY LAW PETITION
IN THE ALLAHABAD HIGH COURT
FAMILY LAW PETITION NO. ________ OF 2024
IN THE MATTER OF
[Name of the Petitioner]
Petitioner
versus
[Name of the Respondent]
Respondent
UNDER ARTICLE ______ OF THE CONSTITUTION OF INDIA.
To
The Hon'ble Chief Justice and the esteemed Judges of the Allahabad High Court. The humble petition of the Petitioner abovenamed.
MOST RESPECTFULLY SHEWETH:
(1) Facts of the Case:
1. The Petitioner, [Name of the Petitioner], and the Respondent, [Name of the Respondent], were married on 7th February 2006 in accordance with the Hindu Marriage Act, 1955. Out of the wedlock, a daughter was born on 10th January 2011, named [Name of the Daughter].
2. Subsequently, due to irreconcilable differences, the parties decided to seek a divorce, and the divorce was granted by the Allahabad Court on 25th May 2023. As per the divorce decree, the custody of the minor daughter was granted to the Respondent, [Name of the Respondent].
3. Despite the court's order granting visitation rights to the Petitioner, [Name of the Petitioner], allowing him to meet his daughter once a week for one hour, the Respondent has continuously denied the Petitioner access to the child. This denial of visitation rights is in direct contravention of the court's order and is causing emotional distress to the Petitioner.
4. The Petitioner has made several attempts to reason with the Respondent and amicably resolve the issue of visitation rights, but all efforts have been futile. The Petitioner is left with no choice but to seek the intervention of this Hon'ble Court to enforce his visitation rights and ensure that he can maintain a meaningful relationship with his daughter.
5. The Petitioner has attached the following documents as annexures to support the facts stated above:
Annexure 1: Certified copy of the marriage certificate
Annexure 2: Birth certificate of the minor daughter
Annexure 3: Copy of the divorce decree
Annexure 4: Court order granting visitation rights to the Petitioner
(2) Questions of Law:
The following questions of law arise for consideration by this Hon'ble Court:
1. Whether the denial of visitation rights to the Petitioner by the Respondent is in violation of the court's order and the legal provisions governing visitation rights of parents post-divorce?
2. What remedies are available to the Petitioner under the Hindu Marriage Act, 1955, and other relevant laws to enforce his visitation rights and ensure the best interests of the minor child are protected?
3. Whether the actions of the Respondent in denying access to the minor child to the Petitioner amount to contempt of court and warrant appropriate legal action?
The Petitioner respectfully prays for the indulgence of this Hon'ble Court to consider the facts and legal issues raised herein and provide necessary relief in the interest of justice.
[Signature of the Petitioner]
[Name of the Petitioner]
(3) Grounds:
1. The fundamental right to family life and parental rights as enshrined in Article 21 of the Constitution of India is being violated by the denial of visitation rights to the father. The right to family life includes the right of a parent to maintain contact with their child, and the denial of such visitation rights is a violation of this fundamental right. The Supreme Court of India has consistently held that the best interests of the child are paramount in matters concerning custody and visitation rights, and the denial of visitation rights without valid reasons goes against this principle.
2. The visitation order passed by the Allahabad Court granting the father the right to meet his daughter once a week for one hour is being flouted by the mother. The visitation order was passed after due consideration of the welfare of the child and the rights of both parents. The mother's refusal to comply with the court order not only undermines the authority of the court but also deprives the child of the opportunity to maintain a relationship with her father, which is crucial for her emotional and psychological well-being.
3. Section 26 of the Hindu Marriage Act, 1955 provides for the custody of children after divorce. The section mandates that the court shall have due regard to the welfare of the child while deciding on custody and visitation rights. In the present case, the denial of visitation rights to the father is not in the best interests of the child and goes against the spirit of the law. The father has a legal right to maintain a relationship with his daughter, and this right cannot be arbitrarily denied by the mother.
4. The denial of visitation rights to the father is also a violation of the principles of natural justice. The father has a right to be heard and to present his case before the court. By unilaterally denying him visitation rights, the mother is depriving him of his right to due process and fair treatment. It is imperative that the court intervenes to ensure that the father's rights are protected and that justice is done in this matter.
5. The actions of the mother in denying visitation rights to the father also amount to contempt of court. Disobeying a court order is a serious offense and undermines the authority of the judiciary. The mother's refusal to comply with the visitation order not only disrespects the court's decision but also sets a dangerous precedent for future cases involving custody and visitation rights. It is essential that the court takes strict action to enforce its orders and uphold the rule of law.
6. The denial of visitation rights to the father is causing irreparable harm to the relationship between the father and the child. Every child has the right to maintain a relationship with both parents, and the denial of visitation rights can have long-lasting negative effects on the child's emotional and psychological well-being. It is crucial that the court intervenes to ensure that the father is able to exercise his visitation rights and maintain a meaningful relationship with his daughter.
(4) DECLARATION IN TERMS OF RULE 4(2):
I, the present petitioner, solemnly declare that no other petition seeking leave to appeal has been filed by me against the impugned judgment and order in any High Court or the Supreme Court of India on the subject matter of the present petition.
(5) Prayer:
In light of the aforementioned grounds and legal arguments, it is prayed that this Hon'ble Court may be pleased to:
(i) Direct the mother to comply with the visitation order passed by the Allahabad Court and allow the father to meet his daughter once a week for one hour.
(ii) Pass any other orders or directions deemed necessary to ensure the protection of the father's visitation rights and the best interests of the child.
FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL AS INDUTY BOUND, EVER PRAY.
FILED BY:
[Name of Advocate]
FAMILY LAW PETITION NO. ________ OF 2024
IN THE MATTER OF
[Name of the Petitioner]
Petitioner
versus
[Name of the Respondent]
Respondent
UNDER ARTICLE ______ OF THE CONSTITUTION OF INDIA.
To
The Hon'ble Chief Justice and the esteemed Judges of the Allahabad High Court. The humble petition of the Petitioner abovenamed.
MOST RESPECTFULLY SHEWETH:
(1) Facts of the Case:
1. The Petitioner, [Name of the Petitioner], and the Respondent, [Name of the Respondent], were married on 7th February 2006 in accordance with the Hindu Marriage Act, 1955. Out of the wedlock, a daughter was born on 10th January 2011, named [Name of the Daughter].
2. Subsequently, due to irreconcilable differences, the parties decided to seek a divorce, and the divorce was granted by the Allahabad Court on 25th May 2023. As per the divorce decree, the custody of the minor daughter was granted to the Respondent, [Name of the Respondent].
3. Despite the court's order granting visitation rights to the Petitioner, [Name of the Petitioner], allowing him to meet his daughter once a week for one hour, the Respondent has continuously denied the Petitioner access to the child. This denial of visitation rights is in direct contravention of the court's order and is causing emotional distress to the Petitioner.
4. The Petitioner has made several attempts to reason with the Respondent and amicably resolve the issue of visitation rights, but all efforts have been futile. The Petitioner is left with no choice but to seek the intervention of this Hon'ble Court to enforce his visitation rights and ensure that he can maintain a meaningful relationship with his daughter.
5. The Petitioner has attached the following documents as annexures to support the facts stated above:
Annexure 1: Certified copy of the marriage certificate
Annexure 2: Birth certificate of the minor daughter
Annexure 3: Copy of the divorce decree
Annexure 4: Court order granting visitation rights to the Petitioner
(2) Questions of Law:
The following questions of law arise for consideration by this Hon'ble Court:
1. Whether the denial of visitation rights to the Petitioner by the Respondent is in violation of the court's order and the legal provisions governing visitation rights of parents post-divorce?
2. What remedies are available to the Petitioner under the Hindu Marriage Act, 1955, and other relevant laws to enforce his visitation rights and ensure the best interests of the minor child are protected?
3. Whether the actions of the Respondent in denying access to the minor child to the Petitioner amount to contempt of court and warrant appropriate legal action?
The Petitioner respectfully prays for the indulgence of this Hon'ble Court to consider the facts and legal issues raised herein and provide necessary relief in the interest of justice.
[Signature of the Petitioner]
[Name of the Petitioner]
(3) Grounds:
1. The fundamental right to family life and parental rights as enshrined in Article 21 of the Constitution of India is being violated by the denial of visitation rights to the father. The right to family life includes the right of a parent to maintain contact with their child, and the denial of such visitation rights is a violation of this fundamental right. The Supreme Court of India has consistently held that the best interests of the child are paramount in matters concerning custody and visitation rights, and the denial of visitation rights without valid reasons goes against this principle.
2. The visitation order passed by the Allahabad Court granting the father the right to meet his daughter once a week for one hour is being flouted by the mother. The visitation order was passed after due consideration of the welfare of the child and the rights of both parents. The mother's refusal to comply with the court order not only undermines the authority of the court but also deprives the child of the opportunity to maintain a relationship with her father, which is crucial for her emotional and psychological well-being.
3. Section 26 of the Hindu Marriage Act, 1955 provides for the custody of children after divorce. The section mandates that the court shall have due regard to the welfare of the child while deciding on custody and visitation rights. In the present case, the denial of visitation rights to the father is not in the best interests of the child and goes against the spirit of the law. The father has a legal right to maintain a relationship with his daughter, and this right cannot be arbitrarily denied by the mother.
4. The denial of visitation rights to the father is also a violation of the principles of natural justice. The father has a right to be heard and to present his case before the court. By unilaterally denying him visitation rights, the mother is depriving him of his right to due process and fair treatment. It is imperative that the court intervenes to ensure that the father's rights are protected and that justice is done in this matter.
5. The actions of the mother in denying visitation rights to the father also amount to contempt of court. Disobeying a court order is a serious offense and undermines the authority of the judiciary. The mother's refusal to comply with the visitation order not only disrespects the court's decision but also sets a dangerous precedent for future cases involving custody and visitation rights. It is essential that the court takes strict action to enforce its orders and uphold the rule of law.
6. The denial of visitation rights to the father is causing irreparable harm to the relationship between the father and the child. Every child has the right to maintain a relationship with both parents, and the denial of visitation rights can have long-lasting negative effects on the child's emotional and psychological well-being. It is crucial that the court intervenes to ensure that the father is able to exercise his visitation rights and maintain a meaningful relationship with his daughter.
(4) DECLARATION IN TERMS OF RULE 4(2):
I, the present petitioner, solemnly declare that no other petition seeking leave to appeal has been filed by me against the impugned judgment and order in any High Court or the Supreme Court of India on the subject matter of the present petition.
(5) Prayer:
In light of the aforementioned grounds and legal arguments, it is prayed that this Hon'ble Court may be pleased to:
(i) Direct the mother to comply with the visitation order passed by the Allahabad Court and allow the father to meet his daughter once a week for one hour.
(ii) Pass any other orders or directions deemed necessary to ensure the protection of the father's visitation rights and the best interests of the child.
FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL AS INDUTY BOUND, EVER PRAY.
FILED BY:
[Name of Advocate]
Relevant Supreme Court Judgments
Year From: 1950, Year To: 2024
Year From: 1950, Year To: 2024
Supreme Court
Honourable Judges B.P. Singh, Altamas Kabir
Date of Judgment: 17 Feb 2006
Segment Number (Approximate Page Number): 3
Relevancy Score: 71.66
In the case of Sheila B. Das vs P.R. Sugasree (17 Feb 2006) Honourable Supreme Court observed:
No.365/01, was also dismissed on 16th June, 2003. Immediately, thereafter, on 28th June, 2003, the Family Court granted divorce to the parties. Being aggrieved by the dismissal of her appeal, being M.F.A.No.365/01, the appellant herein filed the instant Special Leave Petition, being SLP ) No. 18961/2003, which after admission was renumbered as Civil Appeal No.6626/2004. On 20th July, 2004, the appellant herein filed a petition in the pending Special Leave Petition for interim visitation rights in respect of her minor child for the months of August and September, 2004. After considering the submissions made by the appellant, who was appearing in person, and the learned counsel for the respondent, this Court passed the following order:- "This petition has been filed by the mother of minor girl-Ritwika, aged about 12 years, challenging the impugned order of the High Court dated 16th June, 2003. By the impugned order the High Court confirmed the order of the Family Court holding that it is in the best interest of the child that she be in the custody of the father. The High Court, however, permitted the petitioner to visit the child at the house of the father once in a month, that is, first Sunday of every month and spend the whole day with the child there with a further stipulation that she will not be removed from the father's house. The petitioner and the respondent have not been living together since February, 2000. The divorce between them took place by order dated 26th June, 2003. On question of interim custody, in terms of the order dated 30th April, 2003, the Family Court Trichur, was directed to make an order regarding the visitation rights of the petitioner for the months of May, June and July, 2004 so that the petitioner may meet her daughter at the place of some neutral person and, if necessary, in the presence of a family counsellor or such other person deemed just, fit and proper by the Family Court. The Family Court was directed to fix any two days, in months of May, June and July of 2004, considering the convenience of the parties, when the petitioner may be in a position to spend entire day with her child. Pursuant to the above said order the Family Court had fixed two days in the months of May, June and July, 2004 so that the petitioner could meet her daughter on those days. The Family Court directed that the said meeting shall take place in the room of family counsellor in Court precincts. According to the petitioner the said arrangement was not satisfactory, so much so that ultimately she made a request to the Family Court that instead of meeting her daughter in the room of the family counsellor, the earlier arrangement of meeting her at father's house was may be restored. The Family Court, however, did not modify the order having regard to the orders passed by this Court on 30th April, 2004. It is, however, not necessary at this stage to delve any further on this aspect.
No.365/01, was also dismissed on 16th June, 2003. Immediately, thereafter, on 28th June, 2003, the Family Court granted divorce to the parties. Being aggrieved by the dismissal of her appeal, being M.F.A.No.365/01, the appellant herein filed the instant Special Leave Petition, being SLP ) No. 18961/2003, which after admission was renumbered as Civil Appeal No.6626/2004. On 20th July, 2004, the appellant herein filed a petition in the pending Special Leave Petition for interim visitation rights in respect of her minor child for the months of August and September, 2004. After considering the submissions made by the appellant, who was appearing in person, and the learned counsel for the respondent, this Court passed the following order:- "This petition has been filed by the mother of minor girl-Ritwika, aged about 12 years, challenging the impugned order of the High Court dated 16th June, 2003. By the impugned order the High Court confirmed the order of the Family Court holding that it is in the best interest of the child that she be in the custody of the father. The High Court, however, permitted the petitioner to visit the child at the house of the father once in a month, that is, first Sunday of every month and spend the whole day with the child there with a further stipulation that she will not be removed from the father's house. The petitioner and the respondent have not been living together since February, 2000. The divorce between them took place by order dated 26th June, 2003. On question of interim custody, in terms of the order dated 30th April, 2003, the Family Court Trichur, was directed to make an order regarding the visitation rights of the petitioner for the months of May, June and July, 2004 so that the petitioner may meet her daughter at the place of some neutral person and, if necessary, in the presence of a family counsellor or such other person deemed just, fit and proper by the Family Court. The Family Court was directed to fix any two days, in months of May, June and July of 2004, considering the convenience of the parties, when the petitioner may be in a position to spend entire day with her child. Pursuant to the above said order the Family Court had fixed two days in the months of May, June and July, 2004 so that the petitioner could meet her daughter on those days. The Family Court directed that the said meeting shall take place in the room of family counsellor in Court precincts. According to the petitioner the said arrangement was not satisfactory, so much so that ultimately she made a request to the Family Court that instead of meeting her daughter in the room of the family counsellor, the earlier arrangement of meeting her at father's house was may be restored. The Family Court, however, did not modify the order having regard to the orders passed by this Court on 30th April, 2004. It is, however, not necessary at this stage to delve any further on this aspect.
Supreme Court
Honourable Judges Krishna Murari, Indu Malhotra, Uday Umesh Lalit
Date of Judgment: 16 Dec 2019
Segment Number (Approximate Page Number): 2
Relevancy Score: 69.57
In the case of Dsg vs Akg (16 Dec 2019) Honourable Supreme Court observed:
The Family Court further directed that the child would remain in the custody of the mother from Saturday (after school hours) till Monday 7 p.m., and with the father from Monday 7 p.m. till Saturday morning. 11. Pursuant to the Order dated 28.07.2018, Dr. Uzma Perveen held four counselling sessions with the child on 31.07.2018, 07.08.2018, 14.08.2018 and 05.09.2018, and submitted her Report dated 14.09.2018 before the Family Court. The Counsellor after observing the behavior and conduct of the mother, opined that the mother showed symptoms of “Paranoid Schizophrenia”, which required immediate assessment and proper treatment, keeping in mind the welfare of the child. If the mother’s condition remained untreated, it would make the child vulnerable, and would have a lasting psychological impact on the child. 12. The Petitioner – mother filed a Review Petition before the Family Court, Tis Hazari seeking Review of Order dated 28.07.2018. The Family Court vide Order dated 16.11.2018 dismissed the Review Petition. The Court referred to the reports of the three Counsellors, and held that the child has expressed her unequivocal desire to live only with the father. She denied the allegations of sexual abuse by the father. The Court held that the child seemed to be very happy in the presence of the father, and that there shall be no change in the interim custody of the minor. 13. The Petitioner – mother challenged the Order dated 16.11.2018 passed by the Family Court before the High Court in MAT. APP (F.C.) 312/2018. 14. During the pendency of the Appeal before the High Court, the Petitioner – mother filed an Application u/S. 151 CPC before the Family Court seeking custody of the minor daughter during the vacations for 15 days. 15. The Family Court vide Order dated 27.02.2019 granted custody of the daughter to the Petitioner – mother from 28.02.2019 to 10.03.2019 for vacations. The Petitioner – mother was directed to make a video call to the father every evening during this period. The custody of the child was to be handed over to the Respondent – father on 11.03.2019. 16. On 10.03.2019, the Petitioner – wife sent a text message to the Respondent – husband that she was in Goa with the minor daughter, and would return only on 15.03.2019. 17. On 14.03.2019, the Respondent – father filed an Application u/S. 12 and 14 of the Contempt of Courts Act r.w. S.151 CPC for contempt of the Orders dated 16.11.2018 and 27.02.2019 against the Petitioner – mother before the Family Court, since the mother had refused to return the custody of the child. The Family Court took cognizance of noncompliance of Orders by the Petitioner – mother, and vide Order dated 18.04.2019 directed the SHO, PS Rajouri Garden to locate the whereabouts of the minor daughter, and produce her before the Court.
The Family Court further directed that the child would remain in the custody of the mother from Saturday (after school hours) till Monday 7 p.m., and with the father from Monday 7 p.m. till Saturday morning. 11. Pursuant to the Order dated 28.07.2018, Dr. Uzma Perveen held four counselling sessions with the child on 31.07.2018, 07.08.2018, 14.08.2018 and 05.09.2018, and submitted her Report dated 14.09.2018 before the Family Court. The Counsellor after observing the behavior and conduct of the mother, opined that the mother showed symptoms of “Paranoid Schizophrenia”, which required immediate assessment and proper treatment, keeping in mind the welfare of the child. If the mother’s condition remained untreated, it would make the child vulnerable, and would have a lasting psychological impact on the child. 12. The Petitioner – mother filed a Review Petition before the Family Court, Tis Hazari seeking Review of Order dated 28.07.2018. The Family Court vide Order dated 16.11.2018 dismissed the Review Petition. The Court referred to the reports of the three Counsellors, and held that the child has expressed her unequivocal desire to live only with the father. She denied the allegations of sexual abuse by the father. The Court held that the child seemed to be very happy in the presence of the father, and that there shall be no change in the interim custody of the minor. 13. The Petitioner – mother challenged the Order dated 16.11.2018 passed by the Family Court before the High Court in MAT. APP (F.C.) 312/2018. 14. During the pendency of the Appeal before the High Court, the Petitioner – mother filed an Application u/S. 151 CPC before the Family Court seeking custody of the minor daughter during the vacations for 15 days. 15. The Family Court vide Order dated 27.02.2019 granted custody of the daughter to the Petitioner – mother from 28.02.2019 to 10.03.2019 for vacations. The Petitioner – mother was directed to make a video call to the father every evening during this period. The custody of the child was to be handed over to the Respondent – father on 11.03.2019. 16. On 10.03.2019, the Petitioner – wife sent a text message to the Respondent – husband that she was in Goa with the minor daughter, and would return only on 15.03.2019. 17. On 14.03.2019, the Respondent – father filed an Application u/S. 12 and 14 of the Contempt of Courts Act r.w. S.151 CPC for contempt of the Orders dated 16.11.2018 and 27.02.2019 against the Petitioner – mother before the Family Court, since the mother had refused to return the custody of the child. The Family Court took cognizance of noncompliance of Orders by the Petitioner – mother, and vide Order dated 18.04.2019 directed the SHO, PS Rajouri Garden to locate the whereabouts of the minor daughter, and produce her before the Court.
Supreme Court
Honourable Judges Krishna Murari, Indu Malhotra, Uday Umesh Lalit
Date of Judgment: 16 Dec 2019
Segment Number (Approximate Page Number): 3
Relevancy Score: 68.59
In the case of Dsg vs Akg (16 Dec 2019) Honourable Supreme Court observed:
19. The Family Court vide Order dated 23.04.2019 suspended the visitation rights granted to the Petitioner – mother till the next date of hearing. 20. By a subsequent Order dated 03.05.2019, the Family Court held that further visitation to the Petitioner – mother can be allowed only in the Childrens’ Room, Tiz Hazari Complex, Delhi, where the mother could meet the child on every working 1 st, 3rd and 4th Saturday from 3 p.m. to 5 p.m., and on 2nd Friday from 3:30 p.m. to 5 p.m. The father agreed that as per the convenience of the child, he would allow the mother to see the child at the school gate in the morning before school hours. This arrangement of visitation by the mother is continuing ever since. 21. The High Court vide the impugned Order dated 26.03.2019 dismissed the Appeal filed by the Petitioner – mother, and confirmed the Orders dated 28.07.2018 and 16.11.2018 passed by the Family Court. The High Court held that the three Counsellors Reports indicated that the child was comfortable in the company of the father, and wanted to live with him. The Court observed that the video clippings submitted by the Petitioner – mother do not prima facie support her allegation of sexual abuse by the father. The Order dated 26.03.2019 passed by the High Court is impugned by the Petitioner – mother in the present Special Leave Petition. 22. This Court took up the present SLP for hearing on 25.10.2019 when Notice was issued. The Petitioner – mother submitted a DVD containing some video clippings of the child. She placed on record some additional documents in support of her contention that the child was being allegedly molested by the Respondent – father. 23. On 05.12.2019, the Respondent – husband appeared before this Court in person along with his Counsel. We directed the Respondent father to produce the child before this Court on 10.12.2019. 24. On 10.12.2019, both the parties and the minor daughter appeared before us. We individually interviewed both the parents and the child. Having interacted with the child, we are of the view that the minor girl is certainly capable of forming an intelligent preference regarding her custody. We found the girl who is over 12 years of age, and is studying in Class VII to be articulate, and unequivocal about her definite desire to reside with her father. She stated that she received love and affection from her father, who was taking care of her food, education, and would assist her in her school projects and activities. Reliance is placed on the judgment of this Court in Nil Ratan Kundu & Anr. v. Abhijit Kundu1 that while exercising parens patriae jurisdiction, the Court is required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education and general maintenance, and the favorable surroundings. The Court is not bound either by statutes, nor by strict rules of evidence, nor procedure or precedent.
19. The Family Court vide Order dated 23.04.2019 suspended the visitation rights granted to the Petitioner – mother till the next date of hearing. 20. By a subsequent Order dated 03.05.2019, the Family Court held that further visitation to the Petitioner – mother can be allowed only in the Childrens’ Room, Tiz Hazari Complex, Delhi, where the mother could meet the child on every working 1 st, 3rd and 4th Saturday from 3 p.m. to 5 p.m., and on 2nd Friday from 3:30 p.m. to 5 p.m. The father agreed that as per the convenience of the child, he would allow the mother to see the child at the school gate in the morning before school hours. This arrangement of visitation by the mother is continuing ever since. 21. The High Court vide the impugned Order dated 26.03.2019 dismissed the Appeal filed by the Petitioner – mother, and confirmed the Orders dated 28.07.2018 and 16.11.2018 passed by the Family Court. The High Court held that the three Counsellors Reports indicated that the child was comfortable in the company of the father, and wanted to live with him. The Court observed that the video clippings submitted by the Petitioner – mother do not prima facie support her allegation of sexual abuse by the father. The Order dated 26.03.2019 passed by the High Court is impugned by the Petitioner – mother in the present Special Leave Petition. 22. This Court took up the present SLP for hearing on 25.10.2019 when Notice was issued. The Petitioner – mother submitted a DVD containing some video clippings of the child. She placed on record some additional documents in support of her contention that the child was being allegedly molested by the Respondent – father. 23. On 05.12.2019, the Respondent – husband appeared before this Court in person along with his Counsel. We directed the Respondent father to produce the child before this Court on 10.12.2019. 24. On 10.12.2019, both the parties and the minor daughter appeared before us. We individually interviewed both the parents and the child. Having interacted with the child, we are of the view that the minor girl is certainly capable of forming an intelligent preference regarding her custody. We found the girl who is over 12 years of age, and is studying in Class VII to be articulate, and unequivocal about her definite desire to reside with her father. She stated that she received love and affection from her father, who was taking care of her food, education, and would assist her in her school projects and activities. Reliance is placed on the judgment of this Court in Nil Ratan Kundu & Anr. v. Abhijit Kundu1 that while exercising parens patriae jurisdiction, the Court is required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education and general maintenance, and the favorable surroundings. The Court is not bound either by statutes, nor by strict rules of evidence, nor procedure or precedent.
Supreme Court
Honourable Judges M.M. Punchhi, S.B. Majmudar
Date of Judgment: 07 May 1997
Segment Number (Approximate Page Number): 1
Relevancy Score: 68.37
In the case of Madhuri Mehta vs Meet Verma (07 May 1997) Honourable Supreme Court observed:
ORDER 1. During the course of hearing of this transfer petition, parties have jointly made an application under Section 13B of the Hindu Marriage Act, 1955 before us praying for dissolution of their marriage by mutual consent and in the body of the application a provision has been made for their only child. Though the child has been conferred the right to visit his father as and when he likes, there is no corresponding right with the father to visit his child. That state of affairs would be violating the rights of the child and the father. The husband will, thus, have a right of visitation to see his child but after giving due intimation to the mother. The parties have been estranged and have kept apart since January 1996. Earlier to the present status, the parties had their earlier marriages broken or disrupted. The husband lost his wife in a vehicular accident and the wife had divorced her earlier husband. In this background their differences can well be appreciated when both of them are highly educated doctOrs. Keeping that in view, we entertain this application and grant them divorce by mutual consent in exercise of our powers under Article 142 of the Constitution, for which there is ample authority reflective from past decisions of this Court. The divorce petition pending in the Family Court at Patna, shall stand disposed of automatically by this order. 2. The transfer petition and the divorce petition are disposed of accordingly.
ORDER 1. During the course of hearing of this transfer petition, parties have jointly made an application under Section 13B of the Hindu Marriage Act, 1955 before us praying for dissolution of their marriage by mutual consent and in the body of the application a provision has been made for their only child. Though the child has been conferred the right to visit his father as and when he likes, there is no corresponding right with the father to visit his child. That state of affairs would be violating the rights of the child and the father. The husband will, thus, have a right of visitation to see his child but after giving due intimation to the mother. The parties have been estranged and have kept apart since January 1996. Earlier to the present status, the parties had their earlier marriages broken or disrupted. The husband lost his wife in a vehicular accident and the wife had divorced her earlier husband. In this background their differences can well be appreciated when both of them are highly educated doctOrs. Keeping that in view, we entertain this application and grant them divorce by mutual consent in exercise of our powers under Article 142 of the Constitution, for which there is ample authority reflective from past decisions of this Court. The divorce petition pending in the Family Court at Patna, shall stand disposed of automatically by this order. 2. The transfer petition and the divorce petition are disposed of accordingly.
Supreme Court
Honourable Judges G.P. Mathur, Dalveer Bhandari
Date of Judgment: 20 Nov 2006
Segment Number (Approximate Page Number): 6
Relevancy Score: 67.2
In the case of Sanghamitra Ghosh vs Kajal Kumar Ghosh (20 Nov 2006) Honourable Supreme Court observed:
That state of affairs would be violating the rights of the child and the father. The husband will, thus, have a right of visitation to see his child but after giving due intimation to the mother. The parties have been estranged and have kept apart since January 1996. Earlier to the present status, the parties had their earlier marriages broken or disrupted. The husband lost his wife in a vehicular accident and the wife had divorced her earlier husband. In this background their differences can well be appreciated when both of them are highly educated doctors. Keeping that in view, we entertain this application and grant them divorce by mutual consent in exercise of our powers under Article 142 of the Constitution, for which there is ample authority reflective from past decisions of this Court. The divorce petition pending in the Family Court at Patna, shall stand disposed of automatically by this order. The transfer petition and the divorce petitions are disposed of accordingly." In another transfer petition in the matrimonial matter, in Anita Sabharwal v. Anil Sabharwal reported in (1997) 11 SCC 490, this Court was of the view that there was no hope for the parties to live together and passed the following order: "A divorce petition being HMA Case No.863 of 1994 preferred by the respondent- husband was pending in the Court of Shri A.K. Pathak, Additional District Judge, Delhi. The instant transfer petition was moved by the petitioner-wife seeking transfer of the said case to the Family Court, Mumbai. During the pendency of the transfer petition, parties as well as their counsel had on 9.9.1996 put on record a compromise deed wherein they have agreed to get divorce by mutual consent. Strictly speaking, the preconditions of such claim have not been laid inasmuch as a petition to that effect has not been filed under Section 13-B of the Hindu Marriage Act, 1955 (the Act) before the first matrimonial court, and that the statutory period of 6 months has not even commenced. Be that as it may, it stands established beyond doubt on our summoning of the original file HMA Case No.863 of 1994 that the parties were married about 14 years ago, have spent the prime of their life in acrimony and litigating and that it is time that their mutuality bears some fruit in putting them apart. Therefore, we take the divorce petition HMA Case No.863 of 1994 on our own file and import thereto the compromise deed put on record by the parties jointly. In terms therewith, a sum of Rs.7 lakhs stands paid to the wife by means of 3 separate bank drafts of Rs.2 lakhs, Rs.2 lakhs and Rs.3 lakhs. Recurring provision has been made therein for their children's education and visitation rights of the father. We have questioned the parties and they are eager to dissolve the matrimonial tie so that they can rearrange their lives well in time.
That state of affairs would be violating the rights of the child and the father. The husband will, thus, have a right of visitation to see his child but after giving due intimation to the mother. The parties have been estranged and have kept apart since January 1996. Earlier to the present status, the parties had their earlier marriages broken or disrupted. The husband lost his wife in a vehicular accident and the wife had divorced her earlier husband. In this background their differences can well be appreciated when both of them are highly educated doctors. Keeping that in view, we entertain this application and grant them divorce by mutual consent in exercise of our powers under Article 142 of the Constitution, for which there is ample authority reflective from past decisions of this Court. The divorce petition pending in the Family Court at Patna, shall stand disposed of automatically by this order. The transfer petition and the divorce petitions are disposed of accordingly." In another transfer petition in the matrimonial matter, in Anita Sabharwal v. Anil Sabharwal reported in (1997) 11 SCC 490, this Court was of the view that there was no hope for the parties to live together and passed the following order: "A divorce petition being HMA Case No.863 of 1994 preferred by the respondent- husband was pending in the Court of Shri A.K. Pathak, Additional District Judge, Delhi. The instant transfer petition was moved by the petitioner-wife seeking transfer of the said case to the Family Court, Mumbai. During the pendency of the transfer petition, parties as well as their counsel had on 9.9.1996 put on record a compromise deed wherein they have agreed to get divorce by mutual consent. Strictly speaking, the preconditions of such claim have not been laid inasmuch as a petition to that effect has not been filed under Section 13-B of the Hindu Marriage Act, 1955 (the Act) before the first matrimonial court, and that the statutory period of 6 months has not even commenced. Be that as it may, it stands established beyond doubt on our summoning of the original file HMA Case No.863 of 1994 that the parties were married about 14 years ago, have spent the prime of their life in acrimony and litigating and that it is time that their mutuality bears some fruit in putting them apart. Therefore, we take the divorce petition HMA Case No.863 of 1994 on our own file and import thereto the compromise deed put on record by the parties jointly. In terms therewith, a sum of Rs.7 lakhs stands paid to the wife by means of 3 separate bank drafts of Rs.2 lakhs, Rs.2 lakhs and Rs.3 lakhs. Recurring provision has been made therein for their children's education and visitation rights of the father. We have questioned the parties and they are eager to dissolve the matrimonial tie so that they can rearrange their lives well in time.
Supreme Court
Honourable Judges J. Chelameswar, Altamas Kabir
Date of Judgment: 14 Dec 2011
Segment Number (Approximate Page Number): 2
Relevancy Score: 67.16
In the case of Deepti Bhandari vs Nitin Bhandari & Anr (14 Dec 2011) Honourable Supreme Court observed:
5. The Respondent No.1 filed Criminal Appeal No.455 of 2009 on 25th August, 2009 against the aforesaid order dated 2nd June, 2009, before the Court of Upper District Judge (Fast Track) No.9, Jaipur City, Jaipur, which dismissed the same. 6. On 18th September, 2009, the Respondent No.1 filed a Petition under Section 482 Cr.P.C. (S.B. Criminal Misc. Petition No.1977 of 2009) for quashing of the charge-sheet in FIR No.7 of 2009 and further proceedings before the learned Judicial Magistrate-I, No.15, Jaipur City, Jaipur, were stayed therein. On 7th October, 2009, the Respondent No.1 filed another Petition under Section 482 Cr.P.C. (S.B. Criminal Misc. Petition No.2139 of 2009) for quashing of Criminal Legal Case No.13 of 2009 filed by the Petitioner under Section 12 of the PWD Act, 2005. The High Court also stayed the said proceedings pending before the Upper Civil Judge (A,B) and Judicial Magistrate, Serial No.18, Jaipur City, Jaipur. 7. On 22nd January, 2010, when both the matters came up before the High Court for consideration, the High Court directed the Petitioner and the Respondent No.1 to settle their disputes and to apply for divorce by mutual consent within 15 days. The order was passed in the presence of both the parties. While giving the aforesaid directions, the High Court also passed orders allowing visitation rights to the Respondent No.1, husband, in respect of the minor child. 8. On 17th February, 2010, the Respondent No.1 filed S.B. Criminal Revision Petition No.1 of 2010 before the Jaipur Bench of the Rajasthan High Court against the order dated 25th August, 2009 passed in Criminal Appeal No.455 of 2009 dismissing his application for visitation rights. The Respondent NO.1 also filed Application No.3051 of 2010 in S.B. Criminal Misc. Petition No.1977 of 2009 praying for similar visitation rights. On 8th April, 2010, the said application for visitation rights was allowed and the Petitioner was directed to arrange for the meeting of the Respondent No.1 with the Petitioner and their minor daughter at the office of the learned counsel for the Respondent No.1 on every Saturday between 11.00 a.m. and 1.00 p.m. 9. This is the genesis of the problem which is the subject matter of the present Special Leave Petition. 10. According to the Petitioner, on 14th April, 2010, the Petitioner's brother got admission with I.I.P.M. in Delhi, which required him to shift to Delhi for his higher education and the Petitioner also decided to come to Delhi to establish herself professionally to be able to maintain herself and her minor daughter. According to the Petitioner, since then she has been residing in Delhi and the order directing visitation rights to the Respondent No.1 to meet the minor child at Jaipur in the office of the learned counsel for the Respondent No.1 became extremely difficult for her.
5. The Respondent No.1 filed Criminal Appeal No.455 of 2009 on 25th August, 2009 against the aforesaid order dated 2nd June, 2009, before the Court of Upper District Judge (Fast Track) No.9, Jaipur City, Jaipur, which dismissed the same. 6. On 18th September, 2009, the Respondent No.1 filed a Petition under Section 482 Cr.P.C. (S.B. Criminal Misc. Petition No.1977 of 2009) for quashing of the charge-sheet in FIR No.7 of 2009 and further proceedings before the learned Judicial Magistrate-I, No.15, Jaipur City, Jaipur, were stayed therein. On 7th October, 2009, the Respondent No.1 filed another Petition under Section 482 Cr.P.C. (S.B. Criminal Misc. Petition No.2139 of 2009) for quashing of Criminal Legal Case No.13 of 2009 filed by the Petitioner under Section 12 of the PWD Act, 2005. The High Court also stayed the said proceedings pending before the Upper Civil Judge (A,B) and Judicial Magistrate, Serial No.18, Jaipur City, Jaipur. 7. On 22nd January, 2010, when both the matters came up before the High Court for consideration, the High Court directed the Petitioner and the Respondent No.1 to settle their disputes and to apply for divorce by mutual consent within 15 days. The order was passed in the presence of both the parties. While giving the aforesaid directions, the High Court also passed orders allowing visitation rights to the Respondent No.1, husband, in respect of the minor child. 8. On 17th February, 2010, the Respondent No.1 filed S.B. Criminal Revision Petition No.1 of 2010 before the Jaipur Bench of the Rajasthan High Court against the order dated 25th August, 2009 passed in Criminal Appeal No.455 of 2009 dismissing his application for visitation rights. The Respondent NO.1 also filed Application No.3051 of 2010 in S.B. Criminal Misc. Petition No.1977 of 2009 praying for similar visitation rights. On 8th April, 2010, the said application for visitation rights was allowed and the Petitioner was directed to arrange for the meeting of the Respondent No.1 with the Petitioner and their minor daughter at the office of the learned counsel for the Respondent No.1 on every Saturday between 11.00 a.m. and 1.00 p.m. 9. This is the genesis of the problem which is the subject matter of the present Special Leave Petition. 10. According to the Petitioner, on 14th April, 2010, the Petitioner's brother got admission with I.I.P.M. in Delhi, which required him to shift to Delhi for his higher education and the Petitioner also decided to come to Delhi to establish herself professionally to be able to maintain herself and her minor daughter. According to the Petitioner, since then she has been residing in Delhi and the order directing visitation rights to the Respondent No.1 to meet the minor child at Jaipur in the office of the learned counsel for the Respondent No.1 became extremely difficult for her.
Supreme Court
Honourable Judges R.K. Agrawal, A.K. Sikri
Date of Judgment: 17 Feb 2017
Segment Number (Approximate Page Number): 3
Relevancy Score: 67.15
In the case of Jitender Arora & Ors vs Sukriti Arora & Ors (17 Feb 2017) Honourable Supreme Court observed:
While issuing notice in the petition, this Court stayed the operation of the aforesaid judgment of the High Court. That stay order has remained in operation, as a consequence whereof custody of the child continues to be with the father. The respondent, of course, has been granted visitation rights from time to time as and when she came to India and moved an application in this behalf. Such visitation rights have normally been for the entire period of her stay in India on these visits, which range from seven days to even two months. This fact is highlighted to show that the respondent is given access to child for long periods as well, the details whereof are mentioned hereafter. When the case came up before this Court on 31.01.2013 (at that time, Vaishali was 11 years of age), the Bench (comprising of Aftab Alam and Ranjana Prakash Desai, JJ.) decided to meet Vaishali in order to interact with her to ascertain her view point. Thereafter, the matter came up for hearing on 02.04.2013 when the following order was passed: “In the proceedings held on January 31, 2013, it was agreed between the parties and was also noted in the order passed on that date that the child Vaishali should stay with respondent No.1 (Sukriti Arora), the mother of the child at her residence in Delhi for one month under monitoring by this Court. In continuation of that order, therefore, we direct that Vaishali should stay with her mother, tentatively for one month from today, subject to any further direction that may be passed by this Court in the meanwhile. The address of respondent No.1 where she will stay with her daughter Vaishali is 6578, Sector-C, Pocket-6&7, Vasant Kunj, Delhi and her contact number (mobile)is:9968661822. Ms. Madhavi Divan, one of the counsel representing the petitioner shall hand over the child to her mother-respondent No.1 outside the court room after we complete the passing of this order. Respondent No.1 shall deposit her passport with the Registrar (J-III) of this Court which shall be returned back to her after Vaishali goes back to her father on completion of the term of her stay with respondent No.1. We are informed that Vaishali's school is reopening from April 4, 2013. On behalf of Respondent No.1, it is stated that she will ensure that the child reaches the school in time and is brought back to her residence after school hours. The child's stay with her mother will, in no way, affect her attendance at the school or her studies. During her stay with the mother, the child will be free to speak to her father on telephone (Mobile No. 9968661822). On behalf of respondent No.1, it was stated that she would not create any obstruction in the way of the child speaking to her father. During the child's stay with her mother, we would like some responsible and competent person to monitor the arrangement.
While issuing notice in the petition, this Court stayed the operation of the aforesaid judgment of the High Court. That stay order has remained in operation, as a consequence whereof custody of the child continues to be with the father. The respondent, of course, has been granted visitation rights from time to time as and when she came to India and moved an application in this behalf. Such visitation rights have normally been for the entire period of her stay in India on these visits, which range from seven days to even two months. This fact is highlighted to show that the respondent is given access to child for long periods as well, the details whereof are mentioned hereafter. When the case came up before this Court on 31.01.2013 (at that time, Vaishali was 11 years of age), the Bench (comprising of Aftab Alam and Ranjana Prakash Desai, JJ.) decided to meet Vaishali in order to interact with her to ascertain her view point. Thereafter, the matter came up for hearing on 02.04.2013 when the following order was passed: “In the proceedings held on January 31, 2013, it was agreed between the parties and was also noted in the order passed on that date that the child Vaishali should stay with respondent No.1 (Sukriti Arora), the mother of the child at her residence in Delhi for one month under monitoring by this Court. In continuation of that order, therefore, we direct that Vaishali should stay with her mother, tentatively for one month from today, subject to any further direction that may be passed by this Court in the meanwhile. The address of respondent No.1 where she will stay with her daughter Vaishali is 6578, Sector-C, Pocket-6&7, Vasant Kunj, Delhi and her contact number (mobile)is:9968661822. Ms. Madhavi Divan, one of the counsel representing the petitioner shall hand over the child to her mother-respondent No.1 outside the court room after we complete the passing of this order. Respondent No.1 shall deposit her passport with the Registrar (J-III) of this Court which shall be returned back to her after Vaishali goes back to her father on completion of the term of her stay with respondent No.1. We are informed that Vaishali's school is reopening from April 4, 2013. On behalf of Respondent No.1, it is stated that she will ensure that the child reaches the school in time and is brought back to her residence after school hours. The child's stay with her mother will, in no way, affect her attendance at the school or her studies. During her stay with the mother, the child will be free to speak to her father on telephone (Mobile No. 9968661822). On behalf of respondent No.1, it was stated that she would not create any obstruction in the way of the child speaking to her father. During the child's stay with her mother, we would like some responsible and competent person to monitor the arrangement.
Relevant High Court Judgments
Year From: 2000, Year To: 2024
Year From: 2000, Year To: 2024
Madras High Court
Dr.V.Sridevi vs Dr.C.S.Mani
Honourable Judges S.Manikumar, M.Venugopal
Date of Judgment: 29 April 2019
Segment Number (Approximate Page Number): 59
Relevancy Score: 67.02
In the case of Dr.V.Sridevi vs Dr.C.S.Mani (29 April 2019) Honourable Madras High Court observed:
Those entries were written in the year, 2004. Mutual decree for divorce was granted on 10.11.2009, with visitation rights. 78. Contention that the mother had already expressed her desire http://www.judis.nic.in to bring up the child, as a single parent and thus, written in her diary, cannot be a reason, to deny custody to the mother, for the reason that she no longer remains to be a single parent. After divorce in 2009, she got remarried in the year 2010. Child Siddarth has been brought by the mother and stepfather, maternal grand parents, all along. 79. In so far as the denial of visitation rights and letters exchanged between the parties, that on 10.05.2006, the appellant had written a letter to the learned counsel for the respondent, even before filing of the petition for divorce by mutual consent, but stated that the custody of the minor child will be with her. Expressing opinion over custody of the child will be with the mother, would not amount to denial of visitation rights. As mother, she is entitled to state so. In her letter dated 10.05.2006, she has stated that the respondent can have visitation rights once in a week for half an hour. 80. In the subsequent letter dated 17.05.2006, sent by the appellant to the learned counsel for the respondent, she has stated that, "as far as the visitation rights are concerned she has suggested that the http://www.judis.nic.in respondent may visit the child once in a week for a duration of half an hour. Timing can be fixed after discussion. In the said letter, she has also made it clear that the respondent did not visit the child from September 2004 to July 2005. She has denied the allegation that the respondent was made to wait outside." For brevity, the relevant portion of the letter dated 17.05.2006, is reproduced:- "Further I wish to inform you that your client did not visit the child from September 2004 to July 2005. From July 2005 he was making sporadic visits - approximately once a week. These visits would last about half an hour and they were all done in an absence. Now after you have issued the legal notice dated 13.02.2006, he is making daily visits and sometimes twice a day. These visits are also in my absence.
Those entries were written in the year, 2004. Mutual decree for divorce was granted on 10.11.2009, with visitation rights. 78. Contention that the mother had already expressed her desire http://www.judis.nic.in to bring up the child, as a single parent and thus, written in her diary, cannot be a reason, to deny custody to the mother, for the reason that she no longer remains to be a single parent. After divorce in 2009, she got remarried in the year 2010. Child Siddarth has been brought by the mother and stepfather, maternal grand parents, all along. 79. In so far as the denial of visitation rights and letters exchanged between the parties, that on 10.05.2006, the appellant had written a letter to the learned counsel for the respondent, even before filing of the petition for divorce by mutual consent, but stated that the custody of the minor child will be with her. Expressing opinion over custody of the child will be with the mother, would not amount to denial of visitation rights. As mother, she is entitled to state so. In her letter dated 10.05.2006, she has stated that the respondent can have visitation rights once in a week for half an hour. 80. In the subsequent letter dated 17.05.2006, sent by the appellant to the learned counsel for the respondent, she has stated that, "as far as the visitation rights are concerned she has suggested that the http://www.judis.nic.in respondent may visit the child once in a week for a duration of half an hour. Timing can be fixed after discussion. In the said letter, she has also made it clear that the respondent did not visit the child from September 2004 to July 2005. She has denied the allegation that the respondent was made to wait outside." For brevity, the relevant portion of the letter dated 17.05.2006, is reproduced:- "Further I wish to inform you that your client did not visit the child from September 2004 to July 2005. From July 2005 he was making sporadic visits - approximately once a week. These visits would last about half an hour and they were all done in an absence. Now after you have issued the legal notice dated 13.02.2006, he is making daily visits and sometimes twice a day. These visits are also in my absence.
Gujarat High Court
Bhavnaben D/O Lebabhai Rabari vs State Of Gujarat
Honourable Judges Sonia Gokani, Gita Gopi
Date of Judgment: 25 June 2021
Segment Number (Approximate Page Number): 1
Relevancy Score: 66.33
In the case of Bhavnaben D/O Lebabhai Rabari vs State Of Gujarat (25 June 2021) Honourable Gujarat High Court observed:
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. This is an application preferred under Article 226 of the Constitution of India by the mother seeking custody of her daughter, who is presently with her divorced husband. 2. The petitioner married the respondent No.4 on 10.05.2011 and her daughter came to be born out of the R/SCR.A/9007/2020 JUDGMENT DATED: 25/06/2021 said wedlock. Between the spouses, due to internal disputes which had led to irretrievable break down of the marriage, the divorce was perceived to be last resort and accordingly, on 04.10.2020, by way of a customary divorce permissible in their caste, the spouses chose to severe their ties finally. 3. It is the say of the petitioner that at the time of the divorce, it had been decided between the parties that the daughter would continue to be with the mother and the respondent No.4 whenever would choose to meet his daughter he would be permitted to so do it. In between, he had taken the daughter for a few days and had returned her to mother. 4. On 02.12.2020, the respondent No.4 took his daughter for some days and the petitioner was under the impression that he would be returning the daughter after a few days. When that did not happen, and when the petitioner realized that the respondent No.4 got engaged with the third person, on 09.12.2020, her brother and cousin had gone to village Methan to take back the R/SCR.A/9007/2020 JUDGMENT DATED: 25/06/2021 daughter. The former husband-respondent No.4 had denied to handover the custody of the child and instead, had abused the relatives of the petitioner. 5. The grievance on the part of the petitioner is that the daughter is only four years of age and she is required to be with her mother and instead she has been illegally detained by the respondent Nos.4 to 9. The mother is not being permitted to meet the daughter therefore, she firstly chose to give an application to P.S.I., Kakoshi Police Station. She has expressed her apprehension that the daughter was not well and may suffer further for want of care of mother.
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. This is an application preferred under Article 226 of the Constitution of India by the mother seeking custody of her daughter, who is presently with her divorced husband. 2. The petitioner married the respondent No.4 on 10.05.2011 and her daughter came to be born out of the R/SCR.A/9007/2020 JUDGMENT DATED: 25/06/2021 said wedlock. Between the spouses, due to internal disputes which had led to irretrievable break down of the marriage, the divorce was perceived to be last resort and accordingly, on 04.10.2020, by way of a customary divorce permissible in their caste, the spouses chose to severe their ties finally. 3. It is the say of the petitioner that at the time of the divorce, it had been decided between the parties that the daughter would continue to be with the mother and the respondent No.4 whenever would choose to meet his daughter he would be permitted to so do it. In between, he had taken the daughter for a few days and had returned her to mother. 4. On 02.12.2020, the respondent No.4 took his daughter for some days and the petitioner was under the impression that he would be returning the daughter after a few days. When that did not happen, and when the petitioner realized that the respondent No.4 got engaged with the third person, on 09.12.2020, her brother and cousin had gone to village Methan to take back the R/SCR.A/9007/2020 JUDGMENT DATED: 25/06/2021 daughter. The former husband-respondent No.4 had denied to handover the custody of the child and instead, had abused the relatives of the petitioner. 5. The grievance on the part of the petitioner is that the daughter is only four years of age and she is required to be with her mother and instead she has been illegally detained by the respondent Nos.4 to 9. The mother is not being permitted to meet the daughter therefore, she firstly chose to give an application to P.S.I., Kakoshi Police Station. She has expressed her apprehension that the daughter was not well and may suffer further for want of care of mother.
Gauhati High Court
Page No.# 1/18 vs Muktangshu Lahon
Honourable Judges Devashis Baruah
Date of Judgment: 27 September 2022
Segment Number (Approximate Page Number): 4
Relevancy Score: 66.18
In the case of Page No.# 1/18 vs Muktangshu Lahon (27 September 2022) Honourable Gauhati High Court observed:
The said application was petition No.1416/2019 for striking out Section 26 of the Act of 1955 as stated in the cause title which was allowed by the Court of the Principal Judge, Family Court, Kamrup (M), Guwahati. In the said order, the Principal Judge, Family Court, Kamrup (M), Guwahati also passed an order that as the respondent was the father, he may be allowed to meet his child on holidays/every Sundays and the grandparents of the minor child were also allowed to accompany the respondent when he visits his child. It was mentioned that the meeting would take place prior to the sunset and the mother of the child would accompany the child if she desires. Subsequent thereto, on 04.11.2019, an application was filed by the respondent herein drawing the attention of the Principal Judge, Family Court No.1, Kamrup (M), Guwahati that the order dated 12.07.2019 was not adhered to by the petitioner herein by not permitting the respondent to properly meet his daughter as the petitioner repeatedly called the child/daughter inside the bedroom and passed offensive remarks against the respondent all the while and thus took away the precious time of the visits on all the three occasions, i.e. on 21.07.2019; 10.08.2019 and 11.08.2019. It was also averred that the mother of the petitioner even ordered the child not to accept the gifts the respondent brought for his daughter. It was alleged that as all the documents pertaining to the daughter of the petitioner and the respondents were with the petitioner and as such the respondent had serious apprehension that the petitioner may leave India along with their daughter without the consent of the respondent and without informing him. It was under such circumstances, the said petition was filed by the respondent seeking permission to take his daughter out of the house to spend time with his daughter for her amusement and a change of environment on holidays/Sundays; in the interim, the respondent be given the custody of his daughter during the vacation period so that the respondent can bring his daughter to Guwahati to live with him during the vacation period and prohibiting the petitioner to leave India along with his daughter without consent of the respondent during the pendency of the case or to pass such Page No.# 6/18 order(s).
The said application was petition No.1416/2019 for striking out Section 26 of the Act of 1955 as stated in the cause title which was allowed by the Court of the Principal Judge, Family Court, Kamrup (M), Guwahati. In the said order, the Principal Judge, Family Court, Kamrup (M), Guwahati also passed an order that as the respondent was the father, he may be allowed to meet his child on holidays/every Sundays and the grandparents of the minor child were also allowed to accompany the respondent when he visits his child. It was mentioned that the meeting would take place prior to the sunset and the mother of the child would accompany the child if she desires. Subsequent thereto, on 04.11.2019, an application was filed by the respondent herein drawing the attention of the Principal Judge, Family Court No.1, Kamrup (M), Guwahati that the order dated 12.07.2019 was not adhered to by the petitioner herein by not permitting the respondent to properly meet his daughter as the petitioner repeatedly called the child/daughter inside the bedroom and passed offensive remarks against the respondent all the while and thus took away the precious time of the visits on all the three occasions, i.e. on 21.07.2019; 10.08.2019 and 11.08.2019. It was also averred that the mother of the petitioner even ordered the child not to accept the gifts the respondent brought for his daughter. It was alleged that as all the documents pertaining to the daughter of the petitioner and the respondents were with the petitioner and as such the respondent had serious apprehension that the petitioner may leave India along with their daughter without the consent of the respondent and without informing him. It was under such circumstances, the said petition was filed by the respondent seeking permission to take his daughter out of the house to spend time with his daughter for her amusement and a change of environment on holidays/Sundays; in the interim, the respondent be given the custody of his daughter during the vacation period so that the respondent can bring his daughter to Guwahati to live with him during the vacation period and prohibiting the petitioner to leave India along with his daughter without consent of the respondent during the pendency of the case or to pass such Page No.# 6/18 order(s).
Rajasthan High Court
Pratyush Shastri S/O Sh. Madan Lal ... vs State Of Rajasthan
Honourable Judges Manindra Mohan Shrivastava, Shubha Mehta
Date of Judgment: 31 May 2024
Segment Number (Approximate Page Number): 49
Relevancy Score: 65.99
In the case of Pratyush Shastri S/O Sh. Madan Lal ... vs State Of Rajasthan (31 May 2024) Honourable Rajasthan High Court observed:
57. Accordingly, keeping in view the best interest of the child who is aged seven-eight years and taking into consideration that the mother has also started working at Jaipur and the allegations and the counter allegations made by the parties against each other are not substantiated from any clinching material, keeping all other things equal and at par, particularly taking into consideration that the child has consistently been with his mother ever since, he was born and that mother does not suffer from any disqualification of such a nature that would render the child in grave risk and injury with the mother and also taking into consideration that it would be easier for the father to exercise visitation rights as compared to the mother, we are of the view [2024:RJ-JP:24051-DB] (54 of 55) [HC-292/2022] that the child should continue in the custody of the mother rather than directed to be returned to Dubai. 58. However, the father would be entitled to effective visitation rights in the manner that whenever father visits India and wishes to meet the child, the respondent No.6 shall be obliged to allow full access to the petitioner as not only mother but father is equally important for welfare of the child. In times to come, the son may require financial support from his father for undertaking higher studies followed by other requirements which are at present at very low level looking to his age and other needs. Therefore, it is of utmost importance that irrespective of the differences and disputes between the parents, the child grows with the care, love affection, bonding and attachment equally with the father as well as the mother. Therefore, the Respondent No.6 is duty bound to ensure that whenever father seeks access to child, he is readily provided access to child. Ordinarily weekend, i.e., Saturday & Sunday would be comfortable for the child to spend time with his father. Once the father intimates the mother regarding his arrival in India expressing his intention to meet the child, he would be entitled to have visitation rights and the company of the child from 10.00 am to 6.00 pm on Saturday & Sunday. Moreover, if there are vacations and holidays in the school, on every such vacation and every such holiday, the father would have access to the child during the hours stated herein above.
57. Accordingly, keeping in view the best interest of the child who is aged seven-eight years and taking into consideration that the mother has also started working at Jaipur and the allegations and the counter allegations made by the parties against each other are not substantiated from any clinching material, keeping all other things equal and at par, particularly taking into consideration that the child has consistently been with his mother ever since, he was born and that mother does not suffer from any disqualification of such a nature that would render the child in grave risk and injury with the mother and also taking into consideration that it would be easier for the father to exercise visitation rights as compared to the mother, we are of the view [2024:RJ-JP:24051-DB] (54 of 55) [HC-292/2022] that the child should continue in the custody of the mother rather than directed to be returned to Dubai. 58. However, the father would be entitled to effective visitation rights in the manner that whenever father visits India and wishes to meet the child, the respondent No.6 shall be obliged to allow full access to the petitioner as not only mother but father is equally important for welfare of the child. In times to come, the son may require financial support from his father for undertaking higher studies followed by other requirements which are at present at very low level looking to his age and other needs. Therefore, it is of utmost importance that irrespective of the differences and disputes between the parents, the child grows with the care, love affection, bonding and attachment equally with the father as well as the mother. Therefore, the Respondent No.6 is duty bound to ensure that whenever father seeks access to child, he is readily provided access to child. Ordinarily weekend, i.e., Saturday & Sunday would be comfortable for the child to spend time with his father. Once the father intimates the mother regarding his arrival in India expressing his intention to meet the child, he would be entitled to have visitation rights and the company of the child from 10.00 am to 6.00 pm on Saturday & Sunday. Moreover, if there are vacations and holidays in the school, on every such vacation and every such holiday, the father would have access to the child during the hours stated herein above.
Rajasthan High Court - Jodhpur
Parvati vs State & Ors
Honourable Judges P.K. Lohra
Date of Judgment: 20 April 2017
Segment Number (Approximate Page Number): 3
Relevancy Score: 65.41
In the case of Parvati vs State & Ors (20 April 2017) Honourable Rajasthan High Court - Jodhpur observed:
As biological mother, her concern for the well-being of her children and to meet them periodically cannot be under-played. Section 21 of the Act of 2005 envisages with clarity and precision that in appropriate cases, Magistrate at any stage of hearing of the application for protection order or any other relief under this Act, can grant temporary custody of any child or children to the aggrieved person or to the person making an application on her behalf. Merely because petitioner is having her different place of abode cannot be a significant factor for denying her right to visit her children. This Court in Jyoti @ Rashmi (supra) upheld the order passed by Magistrate and allowed the mother visitation rights. In Kalyan Roy (supra), Calcutta High Court has allowed visitation rights to mother and held: (5 of 7) [CRLR-1258/2015] "However, the opposite party/mother should not be deprived of the visiting right, as the child also should develop her relationship with her mother and enjoy the love and affection of her mother. I am informed by Learned Counsel representing both the parties that the opposite party/mother may meet the minor daughter in the residence of one Somnath Chatterjee who happens to be the husband of sister-in-law of the opposite party and who resides at Suri Housing Complex. This visiting right of the opposite party/wife can be exercised on 2nd and 4th Wednesday of every month and the petitioner/husband must bring the minor daughter to the house of Mr. Somnath Chatterjee on the dates fixed by the court. In view of my above findings, the judgment and order passed by Learned Sessions Judge, Birbhum on May 18, 2015 in Criminal Appeal No.03 of 2015 by reversing the order passed by Learned Magistrate is hereby set aside. The minor daughter Manisha will remain in the custody of the petitioner/father temporarily till appropriate order of custody is passed by Learned District Judge under the Guardians and Wards Act. The opposite party/mother will have the visiting right to meet the minor daughter on 2nd and 4th Wednesday of every month in between 9 O'clock in the morning and 5 O'clock in the evening in the house of Mr. Somnath Chatterjee who is residing at Suri Housing Complex in the District of Birbhum.
As biological mother, her concern for the well-being of her children and to meet them periodically cannot be under-played. Section 21 of the Act of 2005 envisages with clarity and precision that in appropriate cases, Magistrate at any stage of hearing of the application for protection order or any other relief under this Act, can grant temporary custody of any child or children to the aggrieved person or to the person making an application on her behalf. Merely because petitioner is having her different place of abode cannot be a significant factor for denying her right to visit her children. This Court in Jyoti @ Rashmi (supra) upheld the order passed by Magistrate and allowed the mother visitation rights. In Kalyan Roy (supra), Calcutta High Court has allowed visitation rights to mother and held: (5 of 7) [CRLR-1258/2015] "However, the opposite party/mother should not be deprived of the visiting right, as the child also should develop her relationship with her mother and enjoy the love and affection of her mother. I am informed by Learned Counsel representing both the parties that the opposite party/mother may meet the minor daughter in the residence of one Somnath Chatterjee who happens to be the husband of sister-in-law of the opposite party and who resides at Suri Housing Complex. This visiting right of the opposite party/wife can be exercised on 2nd and 4th Wednesday of every month and the petitioner/husband must bring the minor daughter to the house of Mr. Somnath Chatterjee on the dates fixed by the court. In view of my above findings, the judgment and order passed by Learned Sessions Judge, Birbhum on May 18, 2015 in Criminal Appeal No.03 of 2015 by reversing the order passed by Learned Magistrate is hereby set aside. The minor daughter Manisha will remain in the custody of the petitioner/father temporarily till appropriate order of custody is passed by Learned District Judge under the Guardians and Wards Act. The opposite party/mother will have the visiting right to meet the minor daughter on 2nd and 4th Wednesday of every month in between 9 O'clock in the morning and 5 O'clock in the evening in the house of Mr. Somnath Chatterjee who is residing at Suri Housing Complex in the District of Birbhum.
Allahabad High Court
Smt. Payal Agrawal vs Deepak Garg
Honourable Judges V.K.Shukla
Date of Judgment: 18 January 2010
Segment Number (Approximate Page Number): 18
Relevancy Score: 64.96
In the case of Smt. Payal Agrawal vs Deepak Garg (18 January 2010) Honourable Allahabad High Court observed:
Child in question is not at all signatory to the said compromise, and qua his interest, the Court has supervisory role to play, to ensure welfare of the minor child. Right of visitation has not at all been defined under Hindu Marriage Act but said right has been recognized by judicial pronouncement while balancing the equity between the parents i.e. husband and wife or any other third party. Visitation right is ante- thesis of custody inasmuch as one who has got custody, he/she will not require visitation right and one who has not got custody then he/she can certainly pray for visitation right to meet near and dear one. Said right has been recognized by Hon'ble Apex Court in the case of Kumar V. Jahgirhar Vs. Chetana K Ramatheertha reported in 2001 AIR (SC) 2179 and in the case of Shila B Das Vs. P.R. Sugasree reported 2006 AIR Jharr-277 . In the said case where custody has been granted to one then visitation right has been granted to other. Said right has been conferred keeping in view human angle attached to the problem. Hon'ble Apex Court made it clear that it is human problem and same required to be solved with human approach. In 59 Am Jur, dealing with subject ' Parent and Child' at pages 35, 36 have dealt with right of visitation. It has been mentioned that right of visitation derives from the right of custody and is controlled by the some principles i.e. the welfare of the child is the relevant consideration. A parent denied custody does not thereby lose his natural right to visit his children, the said right may be denied if the best interest of child so demands. Visitation right are allowed to ordinarily to non-custodial parent. In the present case merely because custody has been handed over to mother of child with clear cut understanding that custody will not be claimed, can it be said then even visitation right has been surrendered ? Answer would be "No", for the simple reason that father has got every right to satisfy the court by virtue of being father that at least his visitation right be preserved so that he can meet the child and shower his love and affection to her which would be for the welfare of the child. Here in the present case it has been stated that husband and his old parent who have lone grand daughter intend to have visitation right to shower their love and affection.
Child in question is not at all signatory to the said compromise, and qua his interest, the Court has supervisory role to play, to ensure welfare of the minor child. Right of visitation has not at all been defined under Hindu Marriage Act but said right has been recognized by judicial pronouncement while balancing the equity between the parents i.e. husband and wife or any other third party. Visitation right is ante- thesis of custody inasmuch as one who has got custody, he/she will not require visitation right and one who has not got custody then he/she can certainly pray for visitation right to meet near and dear one. Said right has been recognized by Hon'ble Apex Court in the case of Kumar V. Jahgirhar Vs. Chetana K Ramatheertha reported in 2001 AIR (SC) 2179 and in the case of Shila B Das Vs. P.R. Sugasree reported 2006 AIR Jharr-277 . In the said case where custody has been granted to one then visitation right has been granted to other. Said right has been conferred keeping in view human angle attached to the problem. Hon'ble Apex Court made it clear that it is human problem and same required to be solved with human approach. In 59 Am Jur, dealing with subject ' Parent and Child' at pages 35, 36 have dealt with right of visitation. It has been mentioned that right of visitation derives from the right of custody and is controlled by the some principles i.e. the welfare of the child is the relevant consideration. A parent denied custody does not thereby lose his natural right to visit his children, the said right may be denied if the best interest of child so demands. Visitation right are allowed to ordinarily to non-custodial parent. In the present case merely because custody has been handed over to mother of child with clear cut understanding that custody will not be claimed, can it be said then even visitation right has been surrendered ? Answer would be "No", for the simple reason that father has got every right to satisfy the court by virtue of being father that at least his visitation right be preserved so that he can meet the child and shower his love and affection to her which would be for the welfare of the child. Here in the present case it has been stated that husband and his old parent who have lone grand daughter intend to have visitation right to shower their love and affection.
Bombay High Court
Shri Shafeeq Abdul Rahim vs Smt. Tabassum Shafeeq And Anr
Honourable Judges R. P. Sondurbaldota
Date of Judgment: 12 July 2016
Segment Number (Approximate Page Number): 5
Relevancy Score: 64.65
In the case of Shri Shafeeq Abdul Rahim vs Smt. Tabassum Shafeeq And Anr (12 July 2016) Honourable Bombay High Court observed:
In the third week of October, when the mother was looking forward to meeting the daughter she received letter dated 15 th October, 2013 from the father stating that the daughter will not be dropped for the weekly access as she had examination from 21 st October, 2013. The letter also suggested that, the mother should take vacation access in the second half of the vacation as the child needed some dental medical attention. The father suggested that, he would drop the child on 8 th November, 2013 and pick her up on 17 th November, 2013. The mother was reluctant to accept the change since the father had already flouted the order for weekly access on four previous occasions. Only because she had no will to fight, she accepted the change. But the father failed to drop the child even on 8 th November, 2013. When the mother tried to contact him on the two cell numbers, he did not pick up the phone. The mother then tried to contact him through her Advocate. The clerk of the Advocate when sought to serve a letter upon the father, his premises were found locked and the letter could not be delivered. The mother then became anxious and approached Bandra Police Station with the help of Bhiwandi Shaher Mahila Adhyaksha and requested the local police authorities to accompany her for getting access to the daughter. When the mother reached the residence of the father, he and the daughter were not at home. The grandmother who was present in the house scolded the mother and the constable and Rane * 9/25 * CP-509-2013 & CP-211-2014 12July2016 asked them not to visit the house again. 10). The mother became desperate and visited the school of the daughter, only to be told by the School Principal that, the father had given instructions, not to permit the mother to meet the daughter. The Principal on noticing the distraught condition of the mother called the father on his cell phone and informed him of the incident. The father then visited the school and the mother was permitted to meet the daughter only in his presence. In that meeting, the daughter repeated three times that, "Papa aur dadi ne aap se milne mana kiya hai, woh marenge". When the mother tried to handover a gift to the daughter, she again repeated "Dadi marenge, Papa gussa karenge". She hugged the mother very tightly and started crying. But as soon she saw the father, she removed the hands from the mother's shoulder.
In the third week of October, when the mother was looking forward to meeting the daughter she received letter dated 15 th October, 2013 from the father stating that the daughter will not be dropped for the weekly access as she had examination from 21 st October, 2013. The letter also suggested that, the mother should take vacation access in the second half of the vacation as the child needed some dental medical attention. The father suggested that, he would drop the child on 8 th November, 2013 and pick her up on 17 th November, 2013. The mother was reluctant to accept the change since the father had already flouted the order for weekly access on four previous occasions. Only because she had no will to fight, she accepted the change. But the father failed to drop the child even on 8 th November, 2013. When the mother tried to contact him on the two cell numbers, he did not pick up the phone. The mother then tried to contact him through her Advocate. The clerk of the Advocate when sought to serve a letter upon the father, his premises were found locked and the letter could not be delivered. The mother then became anxious and approached Bandra Police Station with the help of Bhiwandi Shaher Mahila Adhyaksha and requested the local police authorities to accompany her for getting access to the daughter. When the mother reached the residence of the father, he and the daughter were not at home. The grandmother who was present in the house scolded the mother and the constable and Rane * 9/25 * CP-509-2013 & CP-211-2014 12July2016 asked them not to visit the house again. 10). The mother became desperate and visited the school of the daughter, only to be told by the School Principal that, the father had given instructions, not to permit the mother to meet the daughter. The Principal on noticing the distraught condition of the mother called the father on his cell phone and informed him of the incident. The father then visited the school and the mother was permitted to meet the daughter only in his presence. In that meeting, the daughter repeated three times that, "Papa aur dadi ne aap se milne mana kiya hai, woh marenge". When the mother tried to handover a gift to the daughter, she again repeated "Dadi marenge, Papa gussa karenge". She hugged the mother very tightly and started crying. But as soon she saw the father, she removed the hands from the mother's shoulder.
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