divorce petition with custody petition, = Even custody remained with the mother, right of the father to see the children at the intervals cannot be ignored and as per the Halsburys law of England referred supra the father and mother got equal right to shower their love and affection to the children and as held in Rosy Jacob supra the Court dealing with custody and guardianship matters and the disputes between the father and mother in relation to the custody of the children is expected to strike a just and proper balance on the rights, requirements and sentiments.- the order of the lower Court in allowing the petition to the extent of permitting the father of the children to see and interact with the children on every Sunday between 10 AM and 12 Noon before the Secretary, District Legal Services Authority, City Civil Court, Hyderabad, no way requires interference, but for to cooperate even by the mother of the child to implement the order instead of driving the Family Court to implement with legal coercion by invoking the provisions of Sections 25, 26 and 40 to 45 of Guardians and Wards Act.
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.6852 of 2017
21-12-2017
D.N. Manimanjari Petitioner
S. Virupaksheswara Rao .Respondent
Counsel for the petitioner:Smt. S. Vani
Counsel for the respondent:Ms. G. Sri Devi
<GIST:
>HEAD NOTE:
? Cases referred
1.1996 (3) ALD-816 (DB)
2.(1973)1 SCC 840
3.(2001)8 SCC 5
4.(2001)4 SCC 71
5.(2000)6 SCC 598
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.6852 of 2017
ORDER:
The revision petitioner is no other the wife of the revision
respondent. The O.P.No.1084 of 2013 was filed by the revision
petitioner by name Smt. D.N. Manimanjari, advocate as per the
revision cause title, against her husband by name
S.Virupakshewara Rao, for divorce under Section 13 of Hindu
Marriage Act and therein she also sought for permanent custody
of the minor children i.e., Master S. Pradyumna born on
03.09.2003 and baby S.Pravalika born on 22.05.2006 and also
sought for permanent alimony of Rs.25,00,000/- and Rs.50,000/-
per month towards maintenance and education expenses of the 2
minor children and for costs.
The said divorce petition with custody petition, permanent
alimony and maintenance reliefs was filed on 07.08.2013 and the
same is under contest. She also filed it appears DVC.No.58 of
2014. In the pending DVC, Crl.M.P.No.1605 of 2014 filed by her
husband under Section 21 of PWDV Act seeking visitation rights
of the 2 children. On contest by order dated 24.03.2016, the
learned IV Metropolitan Magistrate, Hyderabad, dismissed the
petition while saying relationship not in dispute and the 2
children are staying with mother who are away to the petitioner
and the 2 children were when interviewed as to willing to meet
their father, they stated they are not interested and thereby they
cannot be compelled to meet their father to consider his request
for visitation rights, but for to decide in a custody petition in
considering the interest of the children and thereby without
consent of children he cannot direct the children to visit their
father. Leave about the correctness of the order and any appeal
filed under Section 29 of PWDV Act against it or not, even from
the very order that is not the be all and end all in considering any
entitlement to custody and visitation rights or not. That order in
DVC case was dated 24.03.2016. The father of the children filed
in the main divorce-cum-custody-cum-permanent alimony and
maintenance petition supra, I.A.No.534 of 2014 seeking visitation
of rights of children on every Saturday and Sunday. It is in
saying the mother of the children who is his wife not allowing him
to see the children for the last one year which swindles the love
and affection of the children towards him and vice versa and he is
liking the children a lot and he is curious of seeing them a lot.
The counter filed in opposing by mother of the children with
whom the children are is with the contest that he never tried to
reach the children nor expressed love and affection and was
arrogantly behaving with the children and even beating cruelly
and threatening them with dire consequences and the son got
disturbed and went in depression and was treated by psychiatrist
and the children are very much afraid of the behaviour of the
father and are reluctant to interact with their father on account of
previous experience hence to dismiss the petition. From that
contest by impugned order dated 06.10.2017, the learned Judge
Family Court, Hyderabad, permitted the father of the children to
see and interact on every Sunday between 10 AM and 12 Noon
before the Secretary, District Legal Services Authority, City Civil
Court, Hyderabad and with observations in support of that order
that the main petition O.P.No.1084 of 2013 is under contest and
evidence is in progress since coming for respondents evidence
after petitioners evidence recorded and it may consume some
more time for its disposal. The children are in the care and
custody of the mother and the petitioner being the father of the
children apart from natural guardian is also entitled to see and
interact with the children to share love and affection and such
interaction and sharing of love and affection would go long way
for healthy growth and nourishment of children and it gives
encouragement and motivation to the children besides acquire
knowledge by sharing the love and affection of their father equally
which is like the affection they are sharing with the mother and
thereby entitled to that limited visiting rights. It is impugning the
same, present CMA is filed by mother of the children with the
contentions that the impugned order of the lower Court is
unsustainable, contrary to law, even doctor advice the father of
the children not to confront the child until get back to normalcy
since in disturbed condition, it was not considered by the lower
Court and the son is studying 9th class and daughter is studying
7th class. The father of the children never felt any responsibility
in up bringing the 2 children and not even paid a single pie for
the past 3 years and already in DVC case for the visitation rights
sought, it was ended in dismissal. There was an order in DVC
case exparte for payment of interim maintenance and it is under
execution and with great difficulty paid some time and stopped
for past 3 months and when the visitation rights of the children
application in I.A.No.534 of 2014 pending before the Court since
past 2 years all of a sudden in allowing the same when the matter
is in progress of trial is also contended as unsustainable that too
even children are expressing their unwillingness as can be seen
from the order in DVC case and the learned Judge of the Family
Court did not even examined the children of their views before
ordering the visitation rights and thereby the order is liable to be
set aside.
The learned counsel for the revision petitioner, mother of
the children, in support of the grounds urged in the revision
reiterated the same impugning the order of the lower Court.
Whereas the learned counsel for the revision respondent/father of
the children supported the order of the lower Court in saying, but
for no separate appeal, the lower Court itself should have been
granted more time for spending with the children in providing the
visitation rights and thereby there is nothing to interfere with the
order of the lower Court and the CMA is liable to be dismissed.
Heard both sides and perused the material on record.
Before coming to the facts, it is necessary to mention on the
scope of law that custody is different from guardianship though
custody can be continued with the guardian generally as held by
a Division Bench of this Court in Mohd.Shaharyarkhan V.
Hussain Khan . In fact, the Apex Court in Rosy Jacob V. Jacob
A.Chakramakkal at page 855 Para 15 observed as follows:
15. . The children are not mere chattels: nor are
they mere playthings for their parents. Absolute
right of parents over the destinies and the lives of
their children has, in the modern changed social
conditions, yielded to the considerations of their
welfare as human beings; so that they may grow up
in a normal balanced manner to be useful members
of the society and the guardian court in case of a
dispute between the mother and the father, is
expected to strike a just and proper balance between
the requirements of welfare of the minor children and
the rights of their respective parents over them.
In Halsburys Laws of England the law pertaining to the
custody of children has been stated at Para No.809 that
Wherein any proceedings before any Court, the
custody or upbringing of a minor is in question, the
Court, in deciding that question, must regard the
welfare of the minor as the first and paramount
consideration, and must not take into consideration
whether from any other point of view the claim of the
father in respect of such custody or upbringing is
superior to that of the mother, or the claim of the
mother is superior to that of the father. In relation to
the custody or upbringing of a minor, a mother has the
same rights and authority as the law allows to a father,
and the rights and authority of mother and father are
equal and are exercisable by either without the other.
It is true in Bimlenda Kumar Chatterjee V. Dipa
Chatterjee the apex Court held that humanitarian approach is
necessary for solving the disputes regarding custody and
guardianship and it was held that even custody retained with
mother, the right of father to see the child at intervals cannot be
ignored.
In R.V.Srinath Prasad V. Nandamuri Jaya Krishna it
was also held that since custody matters are sensitive issues
involving emotions of parties concerned, the Courts have to strike
a balance between the emotions and the welfare of minor, which
is a matter of greater importance as held in Jai Prakash
Khadria V. Shyam Sunder Agarwalla .
The fact that in the pending DVC case, the visiting rights of
the children sought by the father dismissed is not be all and end
all for such an order is even prone to an appeal under Section 29
of DVC Act before the Court of Sessions and from the observation
therein as referred supra of such visitation matter to be decided
in the custody petition pending in the matrimonial lis and for the
present children expressed unwillingness to go to the father not
chosen to give visitation rights. Apart from even coming to the
counter contentions in this petition before the lower Court of the
son got disturbed and went in depression and needs treatment of
Psychiatrist or children afraid of the so called psychic behaviour
of the father and reluctant to interact from the alleged previous
experience concerned, there is basically but for the averments
including in the main divorce petition no any record of the father
of the children is a psycho or sadist much less to appreciate any
argument in this revision in this regard. It is also the duty of the
mother to convince the children who are with her for a little while
for few hours once in a week or so to go and spend with the father
of the children as what is provided even from the order of the
lower Court is to spend few hours before the Legal Services
Authority and not even of taking away the children by the father
to somewhere. Even from the grounds of the revision urged about
the boy underwent treatment under Psychiatrist Dr. Lakshmi
Pingali and counseled by Dr. Jayanthi at Roshini Counselling
centre and that is not a ground to refuse once in a week few
hours by the father to spend with the children to shower the love
and affection. In fact the Apex Court in Bimlendra Kumar
Chatterjee supra held that the Court has to adopt humanitarian
approach necessary for solving the disputes regarding custody
and guardianship. Even custody remained with the mother, right
of the father to see the children at the intervals cannot be ignored
and as per the Halsburys law of England referred supra the
father and mother got equal right to shower their love and
affection to the children and as held in Rosy Jacob supra the
Court dealing with custody and guardianship matters and the
disputes between the father and mother in relation to the custody
of the children is expected to strike a just and proper balance on
the rights, requirements and sentiments.
Having regard to the above, the order of the lower Court in
allowing the petition to the extent of permitting the father of the
children to see and interact with the children on every Sunday
between 10 AM and 12 Noon before the Secretary, District Legal
Services Authority, City Civil Court, Hyderabad, no way requires
interference, but for to cooperate even by the mother of the child
to implement the order instead of driving the Family Court to
implement with legal coercion by invoking the provisions of
Sections 25, 26 and 40 to 45 of Guardians and Wards Act.
Accordingly and in the result, the Civil Revision Petition is
dismissed.
Consequently, miscellaneous petitions, if any shall stand
closed. No costs.
_____________________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date: 21.12.2017
CIVIL REVISION PETITION No.6852 of 2017
21-12-2017
D.N. Manimanjari Petitioner
S. Virupaksheswara Rao .Respondent
Counsel for the petitioner:Smt. S. Vani
Counsel for the respondent:Ms. G. Sri Devi
<GIST:
>HEAD NOTE:
? Cases referred
1.1996 (3) ALD-816 (DB)
2.(1973)1 SCC 840
3.(2001)8 SCC 5
4.(2001)4 SCC 71
5.(2000)6 SCC 598
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.6852 of 2017
ORDER:
The revision petitioner is no other the wife of the revision
respondent. The O.P.No.1084 of 2013 was filed by the revision
petitioner by name Smt. D.N. Manimanjari, advocate as per the
revision cause title, against her husband by name
S.Virupakshewara Rao, for divorce under Section 13 of Hindu
Marriage Act and therein she also sought for permanent custody
of the minor children i.e., Master S. Pradyumna born on
03.09.2003 and baby S.Pravalika born on 22.05.2006 and also
sought for permanent alimony of Rs.25,00,000/- and Rs.50,000/-
per month towards maintenance and education expenses of the 2
minor children and for costs.
The said divorce petition with custody petition, permanent
alimony and maintenance reliefs was filed on 07.08.2013 and the
same is under contest. She also filed it appears DVC.No.58 of
2014. In the pending DVC, Crl.M.P.No.1605 of 2014 filed by her
husband under Section 21 of PWDV Act seeking visitation rights
of the 2 children. On contest by order dated 24.03.2016, the
learned IV Metropolitan Magistrate, Hyderabad, dismissed the
petition while saying relationship not in dispute and the 2
children are staying with mother who are away to the petitioner
and the 2 children were when interviewed as to willing to meet
their father, they stated they are not interested and thereby they
cannot be compelled to meet their father to consider his request
for visitation rights, but for to decide in a custody petition in
considering the interest of the children and thereby without
consent of children he cannot direct the children to visit their
father. Leave about the correctness of the order and any appeal
filed under Section 29 of PWDV Act against it or not, even from
the very order that is not the be all and end all in considering any
entitlement to custody and visitation rights or not. That order in
DVC case was dated 24.03.2016. The father of the children filed
in the main divorce-cum-custody-cum-permanent alimony and
maintenance petition supra, I.A.No.534 of 2014 seeking visitation
of rights of children on every Saturday and Sunday. It is in
saying the mother of the children who is his wife not allowing him
to see the children for the last one year which swindles the love
and affection of the children towards him and vice versa and he is
liking the children a lot and he is curious of seeing them a lot.
The counter filed in opposing by mother of the children with
whom the children are is with the contest that he never tried to
reach the children nor expressed love and affection and was
arrogantly behaving with the children and even beating cruelly
and threatening them with dire consequences and the son got
disturbed and went in depression and was treated by psychiatrist
and the children are very much afraid of the behaviour of the
father and are reluctant to interact with their father on account of
previous experience hence to dismiss the petition. From that
contest by impugned order dated 06.10.2017, the learned Judge
Family Court, Hyderabad, permitted the father of the children to
see and interact on every Sunday between 10 AM and 12 Noon
before the Secretary, District Legal Services Authority, City Civil
Court, Hyderabad and with observations in support of that order
that the main petition O.P.No.1084 of 2013 is under contest and
evidence is in progress since coming for respondents evidence
after petitioners evidence recorded and it may consume some
more time for its disposal. The children are in the care and
custody of the mother and the petitioner being the father of the
children apart from natural guardian is also entitled to see and
interact with the children to share love and affection and such
interaction and sharing of love and affection would go long way
for healthy growth and nourishment of children and it gives
encouragement and motivation to the children besides acquire
knowledge by sharing the love and affection of their father equally
which is like the affection they are sharing with the mother and
thereby entitled to that limited visiting rights. It is impugning the
same, present CMA is filed by mother of the children with the
contentions that the impugned order of the lower Court is
unsustainable, contrary to law, even doctor advice the father of
the children not to confront the child until get back to normalcy
since in disturbed condition, it was not considered by the lower
Court and the son is studying 9th class and daughter is studying
7th class. The father of the children never felt any responsibility
in up bringing the 2 children and not even paid a single pie for
the past 3 years and already in DVC case for the visitation rights
sought, it was ended in dismissal. There was an order in DVC
case exparte for payment of interim maintenance and it is under
execution and with great difficulty paid some time and stopped
for past 3 months and when the visitation rights of the children
application in I.A.No.534 of 2014 pending before the Court since
past 2 years all of a sudden in allowing the same when the matter
is in progress of trial is also contended as unsustainable that too
even children are expressing their unwillingness as can be seen
from the order in DVC case and the learned Judge of the Family
Court did not even examined the children of their views before
ordering the visitation rights and thereby the order is liable to be
set aside.
The learned counsel for the revision petitioner, mother of
the children, in support of the grounds urged in the revision
reiterated the same impugning the order of the lower Court.
Whereas the learned counsel for the revision respondent/father of
the children supported the order of the lower Court in saying, but
for no separate appeal, the lower Court itself should have been
granted more time for spending with the children in providing the
visitation rights and thereby there is nothing to interfere with the
order of the lower Court and the CMA is liable to be dismissed.
Heard both sides and perused the material on record.
Before coming to the facts, it is necessary to mention on the
scope of law that custody is different from guardianship though
custody can be continued with the guardian generally as held by
a Division Bench of this Court in Mohd.Shaharyarkhan V.
Hussain Khan . In fact, the Apex Court in Rosy Jacob V. Jacob
A.Chakramakkal at page 855 Para 15 observed as follows:
15. . The children are not mere chattels: nor are
they mere playthings for their parents. Absolute
right of parents over the destinies and the lives of
their children has, in the modern changed social
conditions, yielded to the considerations of their
welfare as human beings; so that they may grow up
in a normal balanced manner to be useful members
of the society and the guardian court in case of a
dispute between the mother and the father, is
expected to strike a just and proper balance between
the requirements of welfare of the minor children and
the rights of their respective parents over them.
In Halsburys Laws of England the law pertaining to the
custody of children has been stated at Para No.809 that
Wherein any proceedings before any Court, the
custody or upbringing of a minor is in question, the
Court, in deciding that question, must regard the
welfare of the minor as the first and paramount
consideration, and must not take into consideration
whether from any other point of view the claim of the
father in respect of such custody or upbringing is
superior to that of the mother, or the claim of the
mother is superior to that of the father. In relation to
the custody or upbringing of a minor, a mother has the
same rights and authority as the law allows to a father,
and the rights and authority of mother and father are
equal and are exercisable by either without the other.
It is true in Bimlenda Kumar Chatterjee V. Dipa
Chatterjee the apex Court held that humanitarian approach is
necessary for solving the disputes regarding custody and
guardianship and it was held that even custody retained with
mother, the right of father to see the child at intervals cannot be
ignored.
In R.V.Srinath Prasad V. Nandamuri Jaya Krishna it
was also held that since custody matters are sensitive issues
involving emotions of parties concerned, the Courts have to strike
a balance between the emotions and the welfare of minor, which
is a matter of greater importance as held in Jai Prakash
Khadria V. Shyam Sunder Agarwalla .
The fact that in the pending DVC case, the visiting rights of
the children sought by the father dismissed is not be all and end
all for such an order is even prone to an appeal under Section 29
of DVC Act before the Court of Sessions and from the observation
therein as referred supra of such visitation matter to be decided
in the custody petition pending in the matrimonial lis and for the
present children expressed unwillingness to go to the father not
chosen to give visitation rights. Apart from even coming to the
counter contentions in this petition before the lower Court of the
son got disturbed and went in depression and needs treatment of
Psychiatrist or children afraid of the so called psychic behaviour
of the father and reluctant to interact from the alleged previous
experience concerned, there is basically but for the averments
including in the main divorce petition no any record of the father
of the children is a psycho or sadist much less to appreciate any
argument in this revision in this regard. It is also the duty of the
mother to convince the children who are with her for a little while
for few hours once in a week or so to go and spend with the father
of the children as what is provided even from the order of the
lower Court is to spend few hours before the Legal Services
Authority and not even of taking away the children by the father
to somewhere. Even from the grounds of the revision urged about
the boy underwent treatment under Psychiatrist Dr. Lakshmi
Pingali and counseled by Dr. Jayanthi at Roshini Counselling
centre and that is not a ground to refuse once in a week few
hours by the father to spend with the children to shower the love
and affection. In fact the Apex Court in Bimlendra Kumar
Chatterjee supra held that the Court has to adopt humanitarian
approach necessary for solving the disputes regarding custody
and guardianship. Even custody remained with the mother, right
of the father to see the children at the intervals cannot be ignored
and as per the Halsburys law of England referred supra the
father and mother got equal right to shower their love and
affection to the children and as held in Rosy Jacob supra the
Court dealing with custody and guardianship matters and the
disputes between the father and mother in relation to the custody
of the children is expected to strike a just and proper balance on
the rights, requirements and sentiments.
Having regard to the above, the order of the lower Court in
allowing the petition to the extent of permitting the father of the
children to see and interact with the children on every Sunday
between 10 AM and 12 Noon before the Secretary, District Legal
Services Authority, City Civil Court, Hyderabad, no way requires
interference, but for to cooperate even by the mother of the child
to implement the order instead of driving the Family Court to
implement with legal coercion by invoking the provisions of
Sections 25, 26 and 40 to 45 of Guardians and Wards Act.
Accordingly and in the result, the Civil Revision Petition is
dismissed.
Consequently, miscellaneous petitions, if any shall stand
closed. No costs.
_____________________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date: 21.12.2017
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