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CASE NO.: Appeal (civil)  5088-5097 of 2007

PETITIONER: Mohan Kumar Rayana

RESPONDENT: Komal Mohan Rayana

DATE OF JUDGMENT: 01/11/2007

BENCH: C.K.THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NOS.5088-5097 OF 2007 (Arising out of S.L.P.( C) Nos.15167-15176 of 2007)

  Altamas Kabir, J.

1.        Leave granted.

2        Since both the parties to the special leave petitions  are before us, Notice of the Appeals is waived on behalf  of the respondent, Komal Mohan Rayana. 3         The appeals arise out of circumstances wherein owing  to disputes and differences between a married couple, the  child born of the wedlock has become the object of a  tussle for custody between the two parents. 4. The subject matter of these appeals are four orders  passed by the Bombay High Court on 12th July 2007, 19th  July 2007, 27th July 2007 and 6th August 2007 in two  appeals from a petition No.D-65/2005 before the Family  Court.  In order to appreciate the circumstances in which  these orders came to be passed, it will be necessary to  state a few facts leading to the commencement of the  proceedings before the Family Court.  

5.      Admittedly, the appellant herein, who is the husband  of the respondent, married the respondent on 2nd March  2002. A daughter was born to them and she was named  Anisha. Initially there were no disputes as such between  the parties but after the daughter\022s birth, the atmosphere  in the marital home began to change.  We shall not go into  the causes as alleged by the respondent since such  allegations are not relevant for our purpose, but we can  only observe that one of the reasons given by the  respondent for the changed circumstances was the change in  behaviour of the appellant towards her, on account of  addiction to alcohol in the company of his friends.  

6.      In any event, there appears to have been some marital  discord, which resulted in the respondent leaving the  matrimonial house in July 2004 with her minor daughter and  seeking shelter with her parents at Bandra.  According to  the respondent, during the said period she continued to  send Anisha to the Kinder Campus School at Chembur, the  area where the appellant was residing and permitted him on  occasions to keep back Anisha at his residence. The

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respondent has alleged that in October 2005, taking  advantage of such a situation, the appellant kept Anisha  back with him and did not return her to the respondent\022s  custody. This compelled the respondent to meet her  daughter in the school campus, but since this arrangement  did not also work out, in the last week of November 2005,  she approached the Chembur police and with their help got  back the custody of her daughter.  A series of allegations  were thereafter made that on 30th November, 2005 the  appellant, with the help of some of his associates,  forcibly removed Anisha from the respondent\022s custody and  made her completely inaccessible to the respondent. It is  in such compelling circumstances that she moved the Family  Court seeking custody of her minor daughter under Section  6 of the Hindu Minority and Guardianship Act, 1956 read  with Ss.7 and 25 of the Guardians & Wards Act, 1890. 7.      The appellant herein also filed a Custody Petition,  being D-66 of 2005, and both the applications were taken  up for hearing together by the learned Family Court. By  its judgment dated 2nd February 2007 the Family Court  dismissed the appellant\022s application for custody and  allowed the application filed by the respdondent by  passing the following order : \023ORDER The Respondent/Mohankumar Rayana is directed  to hand over custody of the minor daughter  Anisha to the petitioner/mother Komal Rayana  immediately after completion of her final  terms of the current academic session 2006- 2007.

The Respondent/father shall take all the  steps to provide all facilities to the minor  daughter to enjoy her extra curricular  activities and studies.

After the child Anisha goes to the custody  of the mother as ordered above, the  Respondent/father would be at liberty and  privilege to avail her access every  alternate weekends, meet her at school at  any time and share 50% of her school  vacations, as per mutual arrangement with  the petitioner/mother.

The petitioner/mother should in consultation  with the Respondent/father decide the  question of her further academic education  and she should not move the child out of the  jurisdiction of the Court without its prior  permission and of course after due  intimation to the Respondent/father.

The father/respondent shall meet all the  expenses for the education, food and clothes  etc. of the minor daughter Anisha and the  Petitioner/mother of her own accord may  contribute to the same for the child and she  should not be prohibited by the  respondent/father from giving the child  Anisha anything for her own comfort and  pleasant living.  This arrangement for  custody is made on the basis of the prior  consideration for the welfare of the minor  Anisha and in the event of change of

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circumstances  either  of the parents shall  be at liberty and privilege to approach this  Court for fresh direction on the basis of  changed circumstances.

The custody petition D-65/05 moved by the  Respondent/father Mohan Kumar Rayana stands  dismissed  with visitation and access rights  as ordered above.\024

8. Aggrieved by the said Judgment and order of the Family  Court, the appellant filed Family Court Appeal No. 29/2007  before the Bombay High Court on 23.2.2007 and the same was  admitted on 7th March, 2007 and was said to have been per- emptorily fixed for final hearing on 26th March, 2007. On  26th March, 2007 the respondent also filed an appeal,  being Family Court Appeal No.61/2007, challenging the  operation of the judgment of the Family Court dated  2.2.2007 granting access to the appellant  to meet Anisha.  The said appeal was also admitted on 3rd May, 2007. On the  same day, the directions contained in the order of the  Family Court dated 2.2.07 regarding access to the  appellant to meet Anisha, were modified by the High Court  by directing that the minor child would be available to  the appellant as and when he was physically present in  Bombay at his house.  It was also stipulated that whenever  the appellant was not available in Bombay the child should  remain with the respondent.  It was specifically mentioned  that the child should not be removed by the appellant out  of Bombay for any reason whatsoever, except in the  circumstances mentioned in the order.

9.      A Special Leave Petition was filed by the appellant  against the order of the High Court dated 3.5.07 and the  same was disposed of on 18.6.07 with a direction upon the  High Court to hear the Family Court appeal expeditiously.

10.     Certain circumstances intervened which prompted the  Division Bench of the Bombay High Court to modify its  order dated 3.5.07 on 12.7.07 by reducing the access  granted to the appellant and limited such access only to  the day time on the ensuing Saturday and Sunday.  The said  order passed in the two above-mentioned appeals is one of  the orders forming the subject matter of the appeals  before us.

11.     Subsequently, after interviewing the parties and the  minor child, the High Court passed a further order on  19.7.07 directing the appellant and the respondent to  visit a psychiatrist with the child and to obtain a report  from him.  The access granted to the appellant on  Saturdays and Sundays from 9 A.M. to 9 P.M. was continued.  The said order passed in application No.81/2007 filed by  the respondent herein in Family Court Appeal No.61/2007,  is one of the other orders which form the subject matter  of the present appeals before us.

12.     A third order was passed by the Bombay High Court on  27.7.07 directing the appellant and the respondent to seek  appointment with a psychiatrist within a week, and he was  also directed to submit his report within 2 weeks after  the parties were examined.  The interim arrangement made  earlier was directed to continue. The said order is the  third order which is impugned in the present appeals. The

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fourth order impugned in these appeals was passed on  6.8.07 in the pending Civil Application No.81/2007,  whereby, in view of the intervening circumstances, the  High Court passed the following order. \023IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.61 OF 2007 ALONGWITH CIVIL APPLICATION NO.81 OF 2007 ALONGWITH FAMILY COURT APPEAL NO.29 OF 2007

Mr. R.T. Lalwani, Advocate for the  applicant/wife Mr. Kevic Settalwad Advocate i/b D.H. Law  & Associates for Respondent/husband

CORAM :  J.N. PATEL AND A.S. SAYED, JJ DATE  :   AUGUST 6, 2007 P.C. (Per J.N. Patel,J):

       Heard.  We find from the conduct of  the parties that the parties are  repeatedly moving this Court in the matter  on one pretext or the other. It is highly  impossible for the Court to monitor each  and everything.  This being matrimonial  matter relating to access of the child,  the Court has issued directions from time  to time and it is expected that both the  parties shall comply with the directions  of this Court and facilitate each other  and cooperate with each other in the  matter. But it appears that the parties  are trying to interpret the order in the  manner they want, without being concerned  about the welfare of the child, which is  of paramount importance.  This Court has  suggested to the parties to go for  counselling and already a psychiatric of  J.J. Hospital is appointed for the same.   Recent development is represented by the  counsel for the parties shows that on the  last date of access there was some quarrel  between the parties, which lead to  hospitalisation of the wife, for injuries  suffered by her and she is presently  admitted in Lilawati Hospital and likely  to be discharged today or tomorrow.

2.      In our considered opinion the  respondent/wife deserves an opportunity to  place her affidavit on record.

3.      In view of the recent development as  brought to our notice, we are left with no  option, but hold all our interim  orders/relief to grant access to father,  in abeyance till this Court  receives  report of the psychiatrist. We make it  clear that the parties, if fail to  cooperate with the Court in resolving the  issue, this Court would remove the matter  from its board.  It is not expected from  the parties to resolve their domestic

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quarrel in the court and ask the Court to  adjudicate each and every issue, whether  minor or major, relevant or irrelevant.   We hope that the parties would maintain  some discipline in observing the orders of  the Court and cooperate.

4. Parties are at liberty to mention the  matter only after they comply with the  orders of this Court and report of the  psychiatrist is received. Thereafter this  Court proposes to pass the further orders.  The matter stands adjourned for 4 weeks.  We make it clear that on the mean time we  would not entertain any application for  interim relief, or for permitting the  parties to meet the child, or to take  matter on board, which has led this Court  to hold all orders passed earlier in  abeyance.

(A.A.SAYED,J)                   (J.N. PATEL,J) TRUE COPY\024

13. By the aforesaid order all access to the appellant was  kept in abeyance till the Court received the report of the  psychiatrist. The main grievance of the appellant is that  by the order of 6.8.07 he was completely denied any access  to the minor child. He was also aggrieved by the reduction  of access time by the other orders as well.  

14.      Since these appeals have been preferred against the  interim orders passed by the Bombay High Court in the two  pending Family Court Appeals, learned counsel for the  appellant, submitted that in these appeals the only  grievance of the appellant was with regard to denial of  complete access to his child.  He prayed that the  visitation rights which had been granted by the Family  Court be restored during the pendency of the two appeals  in the Bombay High Court.

15.     Since we are only called upon to decide the said  issue, we are not required to go into any other question  relating to the appeals pending before the Bombay High  Court. We have met the appellant, the respondent and also  the minor child, Anisha, separately, in chamber, to  ascertain what each had to say regarding the making of  interim arrangements to allow the appellant to have access  to Anisha.

16.     After having looked through the materials on record  and after considering the views of the parties and the  minor girl, we are of the view that the appellant should  not be denied complete access to his minor child, even if  there has been a default in complying with the directions  of the High Court and that pending the disposal of the  appeals he should be allowed to have access to his minor  child, at least to some extent. 17.     We, accordingly, dispose of these appeals with the  following directions :-

i)      Since the welfare of a minor child is involved,  the High Court is requested to try and dispose  of the pending appeals as expeditiously as

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possible, but preferably within three months  from the date of communication of this order; ii)     The appellant/father of the minor, will be  entitled to have access to Anisha on weekends on  Saturdays and Sundays and will be entitled, if  the child is willing, to keep her with him on  Saturday night.  For the said purpose, the  appellant shall receive the child from the  respondent at 10.00 a.m. on Saturday from her  residence at Bandra or from a mutually agreed  upon venue and shall return the child to the  respondent on Sunday by 2.00 p.m. In the event  Anisha is unwilling to stay with the appellant  overnight, the appellant will then make her over  to the respondent on Saturday itself by 9.00  p.m.; in that case, the appellant will be  entitled to take Anisha out on Sunday also  between 9.00 a.m. to 5.00 p.m.; iii)    Both the appellant as well as the respondent  must co-operate with each other in making the  aforesaid arrangements work.  The respondent  shall not prevent the appellant from having  access to Anisha in the manner indicated above.  Likewise, once Anisha is handed over to the  appellant he too must honour the aforesaid  arrangements and not keep Anisha with him beyond  the time stipulated. In the event of either of  the parties violating the aforesaid arrangement,  the other party would be at liberty to pray for  appropriate orders before the Bombay High Court  in the pending appeals; iv)     The aforesaid arrangement is being made so that  the appellant can have access to his minor  daughter and also to ensure that the child\022s  education does not suffer in any way during the  week.

18.     The appeals are, accordingly, disposed of with the  aforesaid modifications of the interim orders passed by  the High Court and save as aforesaid, all the other  interim directions shall continue to remain operative.

19.     Since, in terms of our earlier directions, the  expenses of the respondent and Anisha for coming from  Bombay to Delhi and other litigation expenses is said to  have been deposited by the appellant with the Registry of  this Court, the respondent shall be entitled to withdraw  the same. There shall be no further order as to costs in  these appeals.