Dr.Rakesh Kapoor vs Mrs.Sapna Kapoor
2011 Latest Caselaw 3371 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 15.7.2011


+CM(M) No.1390/2010 & CM No.19712/2010 (for stay) &
CM No.7666/2011 (for consolidation)


DR.RAKESH KAPOOR                               ...........Appellant
                          Through:   Mr.Vinod Tyagi, Advocate.

                     Versus

MRS.SAPNA KAPOOR                               ..........Respondent
                          Through:   Harsh K.Sharma, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. By way of this petition the petitioner has impugned the

order of the Family Court dated 17.9.2010 which was on an

application under Section 12 of the Guardian and Ward Act 1890

seeking modification of the order dated 17.8.2009. Vide order

dated 17.8.2009 the Civil Judge had granted visitation rights for

twice a month to the estranged father of the three year old child

of the parties for a period of one hour on each visitation. The

petitioner husband had sought modification of this order; the

order had been modified and instead of visitation right of two

times in a month, the visitation rights of three times in a month

for two hours everyday had been afforded to the father.

2. Facts emanating are that Rakesh Kapoor and Sapna Kapoor

had been married on 19.2.2007. A female child namely Ilaria

Kapoor was born out of their wedlock on 16.5.2008. The child is

in the care and custody of the mother. It is not in dispute that

that after the birth of the child the mother had left the

matrimonial home and from the hospital itself gone to live with

her parents. It is also not in dispute that in the maintenance

proceedings which have arisen between the parties a sum of

`33,000/- per month is being paid by the petitioner husband to the

respondent wife. The petitioner husband is an M.B.B.S doctor.

3. The respondent wife had opposed the application filed under

Section 12 of the Guardian and Ward Act primarily on two

grounds; the first ground was on maintainability and the second

ground was right of the father to meet the child. Her contention

being that since the child was of tender years and her husband

had bad habits; he was a drug addict, the access of the father to

his child would be injurious to the growth of the child and would

in fact have a negative influence upon her. These allegations find

mention in the impugned order. It is not in dispute that the

petitioner husband is an M.B.B.S. doctor and he is earning a

handsome salary that is why he has been directed to pay `33,000/-

per month to his wife; which order is being complied with. In

these circumstances, it is difficult to believe that an M.B.B.S.

doctor who is admittedly earning such a handsome amount is a

drug addict. These appear to nothing more than allegations and

are not appreciated. The photographs taken by the petitioner

husband at the time when he was permitted visitation with his

daughter have been placed on record. The father and the child

both appear to be in a happy mood; child is comfortable in the

arms of her father; her grandmother is also depicted in a

photograph.

4. At the threshold, learned counsel for the respondent has

argued on the maintainability of the petition. Reliance has been

placed upon a judgment of the Apex Court report in JT 2010(7)

Supreme Court 514 to support his submission that the remedy

available to the petitioner against the impugned order is not a

petition under Article 227 of the Constitution. This argument has

been refuted by learned counsel for the petitioner who states that

a party cannot be left remediless; the impugned order can

admittedly not be the subject matter of an appeal neither does a

remain lie against the said order. The only remedy available to

the petitioner is to file a CM(M). Article 227 of the Constitution is

a writ jurisdiction available to the High Court to rectify a patent

illegality or injustice to a party and when there has been a gross

or manifest failure of justice. The impugned order has recorded

that the parties have appeared before the court and efforts have

been made for re-conciliation; there is nothing adverse which has

been noted about the conduct or the attitude of the husband

which in any manner lead to the conclusion that the husband is

not in a fit frame of mind to meet his child or the meeting of the

father with his child would otherwise hamper or negative the

growth of the child. Time and again the courts have held that

merely because of the war between two parents the child should

not be made a victim and a meaningful exposure should be

granted to the child to meet and have access to both his parents if

there is nothing adverse against the estranged parent. This is

productive and in fact necessitated for the growth of the child.

5. In this background it would be necessary to modify the

impugned order which has granted two hour visitation right to the

father on three Saturdays of a month and that also in the court

premises which in no manner can be said to be a congenial or

comfortable atmosphere for the child.

6. The impugned order is accordingly modified; the petitioner

father is granted permission to take the child to his residence on

all the three aforenoted Saturdays of the month (except second

Saturday); he will pick up the child at 10.00 AM from the

residence of his wife and will drop back the child not later than

6.00 PM in the evening. This time would enable the father to

interact with his child in his home where the child will be able to

respond to her father in a more amiable manner. It is clarified

that any observation made herein would not affect the merits of

the case. With these directions, the petition is disposed of.

INDERMEET KAUR, J.

JULY 15, 2011 nandan