Mrs. Sarjana Naresh Bhandari vs Mr. Naresh Bala Prasad Chaurasia
2016 Latest Caselaw 4060 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION




                                                                                  
                          WRIT PETITION NO. 10559         OF 2015




                                                          
            Mrs. Sarjana Naresh Bhandari                   ..      Petitioner
                  vs.
            Mr. Naresh Bala Prasad Chaurasia               ..      Respondent




                                                         
            Mr. Vijay Chavan i/b. Mr. A. D. Sarwate for Petitioner.
            Ms Seema Sarnaik and Mr. Ameya Tamhane for Respondent.
            Mrs. Sarjana Naresh Bhandari - Petitioner present in person.
            Mr. Naresh Bala Prasad Chaurasia - Respondent present in
            person.




                                             
                                    ig   CORAM : M. S. SONAK, J.

             Date of Reserving the Judgment :   28              June 2016
             Date of Pronouncing the Judgment : 22              July 2016
                                  
            JUDGMENT :-

            1]      On 21 April 2016, this petition was heard finally and closed for

orders. However, since the parties were exploring the possibility of

an amicable settlement, the matter was taken up from time to time,

with a view to assist the parties, in arriving at an amicable

settlement. This Court, as well as, the counsel appearing for the

parties agreed that such amicable settlement would be in the best

interests of the parties, including in particular, in the best interests of

minor son Ishan, since, the issues of custody and access arise in

the main matter pending before the Civil Judge, Senior Division at

Pune (trial court).

2] Even before, the matter was taken up for final hearing, this

Court, from time to time, made orders in the matter of interim

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access, keeping in mind, the apprehensions expressed by both the

parties, including in particular, the apprehensions expressed by the

petitioner - mother, in the matter of access to Ishan.

3] On 21 October, 2015, this Court, made the following order:

"1] Not on board. Upon production, taken on board. 2] Place this matter for further consideration on 26/11/2015 (on Supplementary Board).

3] The parties shall abide by the following interim

(a)

arrangement till then:-

On 07/11/2015, the respondent shall be entitled to

supervised access between 11.00 a.m. to 2.00 p.m. in the Family Court Child Care Centre. On this date, the petitioner or her mother shall be entitled to remain present outside the

centre. In case the child is required to visit the toilet, the petitioner or her mother to accompany the child to the toilet.

(b) Similarly, the respondent shall be entitled to supervised access on 09/11/2015 and 13/11/2015 between 2.30 p.m. to

5.00 p.m. at Sr. Chrispines, Karve Road, Nal Stop. This access shall also be subject to the aforesaid arrangement with regard to toilet etc."

4] Considering the allegations made by the petitioner, it was

suggested that the parties consult some doctor / counsellor and

obtain some advise / guidance in the matter. Accordingly, on 26

November 2015, it was recorded that the parties have agreed to

approach Dr. Sharda Barve, KEM Hospital, Pune. On 18 December

2015 such order was modified as Dr. Barve declined to counsel the

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parties in this matter. Liberty was granted to consult some other

suitable doctor at Sankalp Clinic, Pune.

5] On 20 January 2016, Dr. P. N. Kadam, Counsellor &

Behavioural Psychotherapist of Sankalpa Human Resource

Development Corporation and Sankalpa Treatment Center for Body

& Mind, Pune, has submitted his report. A perusal of the report

indicates that the same is on the basis of substantial thorough

examination of the parties and Ishan. Learned counsel for the

parties were given access to the reports and they appear to have

made their submissions by taking into consideration the contents of

such reports.

6] Mr. Chavan, whilst assailing the order dated 12 August 2015

below Exhibit '118' in M.P. No. 1001 of 2012 submitted that no

proper opportunity was granted to the petitioner and her counsel to

put forth their case and on this ground itself, the impugned order is

liable to be set aside. Mr. Chavan further submitted that the

impugned order has been made in the purported exercise of review

jurisdiction. He submitted that there was no error apparent on face

of record in the earlier order dated 17 December 2014 and

therefore, the trial court, exceeded jurisdiction in reviewing the

same. Finally, Mr. Chavan by reference to certain material

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submitted that there is serious apprehension that the company of

the respondent would be harmful to the interests of the minor child,

particularly considering the age of the child and the nature of

apprehension expressed by the petitioner. For all these reasons, the

learned counsel for the petitioner submitted that the impugned order

warrants interference under Article 227 of the Constitution of India.

7] By the impugned order dated 12 August 2015, the trial court

has allowed the respondent to meet his son Ishan between 11 a.m.

to 2 p.m. on every first and third Saturday at the Family Court Child

Welfare Centre, under the supervision of concerned authority, or

the mother of the child. For this purpose, the respondent father is

required to move application to the Principal Judge, Family Court at

Pune and further, bear necessary expenses for the same. The

petitioner however contests this order by contending that even the

grant of such minimal relief to the respondent father, is not in the

interests of the minor son.

8] There is no substance in the contention based upon denial of

adequate opportunity. From the record it is quite clear that sufficient

opportunity was granted to the petitioner and her lawyer before, the

impugned order dated 12 August 2015 came to be made. The

perusal of the order also indicates that directions were also issued

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to the petitioner to produce the minor son before the court, so that,

the trial judge could interact with the minor son and make the

assessment of the situation. Both the parties, through their

respective Advocates were heard and have made their

submissions in the matter. From the perusal of the impugned order,

it is quite apparent that neither the petitioner nor her Advocate were

either taken by surprise or denied any opportunity of putting forth

their case. Accordingly, there is no case made out to interfere with

the impugned order on the ground that the petitioner was denied

adequate opportunity in the proceedings.

9] In matters of custody or access, it is necessary to go by the

substance of the order or proceedings rather than the very form. It

is true that the respondent in his application at Exhibit '118' had

applied for review of the order dated 17 December 2014. However,

strictly speaking, if the substance of the application is taken into

consideration, then, the plea was not for review but rather, for

variation. In matters of access, there is no question of applying the

strict principles of review as prescribed under Order XLVII Rule 1 of

the CPC. The orders in relation to custody and access, by their very

nature, can never be rigid or final. Upon change in circumstances,

such orders can always be and in fact, should be suitably varied

from time to time. Therefore, I am satisfied that this is not a case

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where the trial court has exceeded its jurisdiction in entertaining the

application for review or variation of the earlier order dated 17

December 2014.

10] The petitioner has made serious allegations against the

respondent for the sake of the minor son Ishan, such allegations are

not transcribed in the course of this order. Such allegations are a

matter of record. The allegations are, no doubt, serious. On the

basis

of such serious allegations, the petitioner, it appears has

succeeded in denying even the minimal access, which has from

time to time been granted to the respondent father. However, it must

be noted that making of serious allegations is one thing but

producing any material in support thereof is quite another. The

petitioner, perhaps, encouraged by her initial successes, seems to

be under the impression that it is sufficient to make allegations of

this nature and on the basis of the same, deny access to the

respondent, until the veracity of such allegations is verified. The

petitioner has also realised that no sooner she or her Advocate, no

doubt upon instructions makes such allegation, the respondent

husband gets agitated and the focus of the matter stands

deflected. The petitioner therefore, persists in making such

allegations. This is by no means a proper approach on the part of

the petitioner, who must realise that the very making of such

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allegations, involves very serious repercussions upon the interest of

her minor son as well. In jurisdiction of this nature, interest of the

minor son is paramount. Therefore, it is the duty of both the parents

to act with utmost responsibility and not make use of the minor

child, in order to settle the differences between themselves.

11] Since, such serious allegations were made by the petitioner

against her own husband, involving the minor son, naturally, the

courts have also proceeded with utmost caution. But for these

allegations, there was really nothing on record to deny the

respondent father substantially greater access. In fact, the material

on record indicates that there is no serious problem between the

respondent and the minor son. The minor son is quite attached to

both the parents and, it appears, enjoys spending time with both the

parents. However, considering the nature of allegations, it is but

natural that the trial court as well as this court proceeds with

extreme caution. The petitioner, it appears, is quite aware of this

position and has therefore, sought to exploit the same and on such

basis denied even the minimal access which the courts had granted

to the respondent.

12] Nevertheless, considering the allegations, even this Court, did

not, to begin with, insist upon the compliance with the order

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impugned in this petition even though, no case had been otherwise

made out for grant of any interim relief. Instead, certain confidence

building measures were directed after adoption of suitable

cautionary measures. The record as well as the interviews with the

parents now indicate that there were no serious issues in the course

of access as directed by this Court during the pendency of the

proceedings. The petitioner, however, did attempt to raise the same

issues though this time, she was quite restrained, realising perhaps

that the opinion of the doctors / counsellors also did not support the

allegations made by her. As noted earlier, it is easy to make

allegations of this nature, but, the petitioner has not really

established the said allegations. At this stage, it is true that there is

no requirement of establishing such allegations beyond any

reasonable doubt. However, even if we have to go by the most

relaxed standards of proof, it must be noted that the petitioner has

failed in achieving such standards, in the matter of allegations made

by her.

13] The Psychiatrist / Counsellors have given detailed reports.

The reports in unequivocal terms state that the child is attached to

both the parents, however, the mother is resisting free access to

the child's father. The counsellors have commented that both the

parents act immaturely and have developed a habit of pre occupied

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and directive perception which has led to confrontations and this

situation. The reports state that the child was playing comfortably

with the respondent father but the petitioner was trying to keep the

child in her custody. The report has commented upon marital mal

adjustment, stress and inter personal conflicts.

14] Both the petitioner and the respondent are qualified software

professionals. Both of them are suitably employed and earn quite

sufficiently. Both hail from quite stable family background. Both are

quite young and if things were to work out, could always begin

anew, so that Ishan has a stable future. Despite efforts however, the

parties state that the differences between themselves are quite

irreconcilable. The next best option is that the parties end their

marriage gracefully, but offer all the requisite love and security to

their son Ishan, at least to the extent, their position permits them.

Keeping this in view, efforts were made to achieve some amicable

settlement, if possible.

15] It is possible that the petitioner is extremely hurt with perhaps,

what she perceives as neglect by her husband and his family

members. The respondent husband also has his own complaints

against the petitioner wife. This is really not the stage to decide

which of the parties are right and what is the relief that they finally

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deserve. However, whatever the hurts or the perceived hurts,

allegations of the nature made by the petitioner against her

husband cannot be permitted to prevail, unless, the same are

made with utmost sense of responsibility and backed by at least

some minimal proof. This is because such allegations, involve the

relationship between a minor child and his biological father. Such

allegations cannot be sustained, merely by contending that minor

child is hyper active or does some acts, which normally children of

his age would not or should not indulge in. At least, the doctors and

counsellors have not found any merit in such allegations. Even,

assuming what the petitioner states is, to a certain extent, the

position, we must realise that these are quite traumatic times for the

minor child. The child, is perhaps a victim of the irreconcilable

differences between his parents, which differences, the parents

have no qualms to violently express in front of the child. The parties

were referred to seek professional help. The doctors / counsellors

have made their reports which do not support the allegations made

by the petitioner. There is no reason not to accept such the reports.

At least, the petitioner has not made out any case warranting non

acceptance of such reports.

16] There is really no case made out by the petitioner to interfere

with the impugned order. In fact, the relief granted by the trial court

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to the respondent, is quite minimal and in case, the respondent

applies for greater access, there is no doubt that the trial court will

consider such application, in accordance with law and after afford

of opportunity to the petitioner. It is perhaps at the insistence of the

petitioner that access has been granted only in the Family Court

Child Welfare Centre and that too under supervision of the

concerned authority or the mother of the child.

17]

The parties in fact agree that access in the Child Welfare

Centre, is not very fruitful, considering location, lack of space and

the presence of several other children and parents. Possibly, the

impugned order was made, taking into consideration the serious

apprehensions expressed by the petitioner. It is necessary to note

that on the basis of material on record there does not appear to be

any reason to sustain such apprehensions. It cannot be ruled out

that such apprehensions have been expressed only to deny the

respondent quality access with the minor son. In the bargain, the

petitioner perhaps does not realise the impact of the allegations

upon her own son. In the course of pendency of the proceedings

before this court, access was directed to be given at places other

than the Child Welfare Centre in the Family Court, e.g. access was

given on one occasion at the Season's Mall at Pune and on

another occasion, access was given at Phoenix Mall. Access was

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also given at Imagica at Khopoli. The material on record indicates

that such access arrangements have worked out well. There is no

doubt that access that is required to be given, has to be quality

access, where, both the parents as well as the child are quite

comfortable with each other. No doubt, these are all matters which

the trial court will take into consideration, in case the respondent

applies for greater access and change of location.

18] In view of the aforesaid, there is no case made out to interfere

with the impugned order. This petition is dismissed. There shall be

no order as to costs.

19] All concerned to act on basis of authenticated copy of this

order.

(M. S. SONAK, J.)

Chandka