Lt Col Manish Sehgal vs Mrs Meenu Sehgal
2013 Latest Caselaw 5846 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                               Date of Decision: 18.12.2013

+       MAT. APP. (FC) NO.29/2013, CM APPL.12745/2013


        LT COL MANISH SEHGAL                          ..... Appellant
                     Through: Mr. Vikas Tomar, Advocate
                      along with appellant in person.

                            versus

        MRS MEENU SEHGAL                        ..... Respondent

Through: Mr. Akhil Sibal & Mr. Bharat Arora, Advocates

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. NAJMI WAZIRI (Open Court)

1. This is a father's appeal against an order of 5th August 2013 by the

Family Court granting custody of his two minor daughters to their

mother - the respondent. The respondent/mother had earlier been

granted interim custody by the same court for the Diwali vacations

and the school winter holidays last year i.e. on 14th and 15th

November, 2012 and also from 29th December, 2012 to 6th January,

2013 respectively. The couple had separated on 16 th August, 2012.

The mother had filed the application for guardianship and interim

custody of the minor children on 1st November, 2012.

2. Upon being permitted by the Court, the mother met the children Sana

and Sarah (aged 7 and 9 years) during the Diwali festival in Lucknow,

where they are studying in classes 4 and 6 respectively in City

Montessori School. However for the winter vacations, she was not

given their custody by the father. Pursuant to the proceedings of non

compliance of the latter order, the Family Court directed the

Commissioner of Police to depute a person not below the rank of ACP

/ a lady officer to accompany the petitioner to Lucknow and bring the

children along with the respondent to the Family Court. The father

and the minor children appeared in Court and the application of the

mother was disposed off on 18th May, 2013. Against this order both

parents appealed to the High Court. The appeals were disposed off on

29th May, 2013 with a direction to the Trial Judge to consider afresh

the statements of the parties before it for an interim arrangement not

only for the summer vacations but also interim arrangements during

the pendency of the proceedings before the Trial Judge. The High

Court made it clear that the Family Court would not be affected by the

opinion expressed by it for the fresh reconsideration while giving

directions which the Trial Court may be required to give.

3. Both parties moved applications for modification of the order dated

18th May, 2013. The application moved by the mother sought two

reliefs: i) grant of temporary custody of the minor girls for the ensuing

summon vacations from 1st to 25th of June 2012 and ii) a decision

afresh for their interim custody during the pendency of the petition.

She claimed that she had been unduly deprived of the society of the

children although she had taken care of them and that such

deprivation had caused her immense mental agony and irreparable

loss. She also highlighted the fact that the father had not handed over

the custody of the children during the winter vacations despite clear

Court orders in that regard. In response the father stated that the

mother was only concerned about her personal care and career and

that it was, in fact, he who had been taking care of the children since

their birth as the mother had shown no such interest in their

upbringing. He further contended that the children were emotionally

attached to him and had categorically expressed their preference of

not wanting to be with their mother.

4. The Trial Court considered the contention of the parties. The

mother's allegations and evidence was regarding alcoholism of the

father, his alleged extra material relationship with another lady, (who

the wife contended) was contemporaneously going through her own

divorce proceedings, letters between her and the present appellant in

this regard, their phone call records, proximity of the Delhi - Kalkaji

address of both persons. The materials relied on by the appellant

further were letters adduced by him- in opposition to the application

for custody, said to have been written by his daughters and by the

Abacus teacher - (the latter informing the father that the children were

getting disturbed perhaps because of the parents' personal life

squabbles). The children's letters relied upon by the father were not

found reliable by the Trial Court which reasoned that the children

who were living with their father, would not write letters of such

nature to him. The Family Court found the mother's contention more

plausible and credible and the circumstances more conducive with the

mother for the custody of the children. The Trial Court had reasoned

that the letters were written after filing of the custody petition and

indeed if the children were in the habit of writing such letters to their

father - with whom they are living - then they must have written

letters earlier and subsequent to the ones adduced by the father.

However, for unexplained reasons, no other letters had been brought

on record. Therefore, no reliance was placed on the said letters.

5. While granting custody to the mother the Trial Court was mindful of

the law with respect to the grant of interim permanent custody of the

minor children in particular of female minors. It referred to Gaurav

Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 and Nil Ratan. v. Abhijit

Kundu Civil Appeal No.496/2008, which requires that issue of a

custody of the minor being a complex question should be solved with

a delicate human touch. That where a court deals with such a case,

neither statutes nor strict rules of evidence or of procedure ought to be

given privacy and that the paramount consideration in such cases

should be the wellbeing and welfare of the minor. That in such cases

of selecting a guardian, the Court would be bound to give due weight

to a child's ordinary comfort, health, education, emotional

development and favourable surroundings. If the minor is old enough

to state his/her independent preference, the Court must consider such

preference as well though the final decision would rest with Court as

what would be conducive to the welfare of the minor.

6. During the course of the hearing before the Trial Court the children

had been brought to the Court since the counsel for the petitioner had

sought to examine them in chamber but on that date the applicant

gave up this request. However, since the children had come all the

way from Lucknow, the Trial Court thought it fit to examine them.

The observations in this regard are relevant:

"However, since both the children were brought in the Court therefore, this Court decided to interact with the children in the chamber and he also stated that he conveyed this fact to the counsel for the respondent also. It seems that since this fact was conveyed to the counsel for the respondent that petitioner will not press for her prayer to examine the daughters in chambers therefore, respondent brought the daughters in the court but they were brought without being tutored. Seeking the plight and fear on the face of both the children we all three decided that will not say any such thing to any of the party and if the respondent will inquire from the children then they will stated that they were asked about their school friends at Lucknow."

"14. Last but not the least it may be mentioned that on 11.7.2013 after counsel for the petitioner moved application for early hearing, I talked to both the children in the chamber which took place between the undersigned and children hardly for 5 minutes. I talked to children and asked them as to how was their

stay with their mother during the summer vacation. They stated that it was wonderful. They further told that they have come from Lucknow and in Lucknow their grandmother is not there as she has suffered fracture of her leg and she is in Delhi. Subsequently I asked a very small question to both children that "Ab kiske pass rehna hai, papa ke pass or mummi ke pass?" Elder of the two kids kept silent but the younger one replied that "mujhe to mammi ke pass rehna hai". When this question was put to the elder one she also stated that "Mujhe bhi mammi ke pass rehna hai per ye bat boli to bahut daant padegi."

7. The court granted custody of the minor children to the mother after

concluding that it would be in the interest and the welfare of both the

children that she have their custody. Reliance was placed upon a case

titled Ayesha Bhati v. Vijay R. Bhatia AIR 1988 Delhi 149 which had

held that wishes expressed by minor are an important consideration.

8. The appellant's counsel, Senior Advocate Mr. Sudhir Nandrajog,

argued that the father was threatened by the respondent/mother that

she would have him put behind the bars; that she shied away from

meeting the children in Lucknow between 11th and 15th November,

2012; that the non-handing over the custody of the minor daughters

was on account of their ill-health and not for any other reason; that the

allusion to an extra marital relationship of the father was a further

attempt to prejudice the Court and that indeed the Court did take this

into account as a factor for granting custody to the mother, whereas in

fact there was no truth in the said allegation; that the children

themselves shared with the High Court and later through their letters

to their father that they did not wish to either meet or stay with their

mother who is otherwise preoccupied with her professional career and

personal care only. It was argued that the letters of the children which

are on record and their interaction with this Court - earlier on

24.5.2013 and during the course of this appeal have revealed that they

do not wish to stay with their mother but with the appellant/father;

that the father is providing them all the care, love and affection which

ought to be given to them and he is best suited in the circumstances

for their nurturing as the children will always be in a protected

environment. In this context it was submitted that the accommodation

provided to senior officers of the Army is most suitable for their

healthy and proper upbringing; and that the Trial Court should not

have interviewed the children in July 2013 when they had already

expressed their desire to stay with the father to the High Court.

Counsel urged that changing their school or transfer or handling over

their custody to the mother at this stage would seriously upset them

psychologically and socially and such upheaval would affect their

personal growth; handing them over to the mother at this juncture

would severely upset their academic session too which has reached

the stage of their academic examinations and finally, that the

impugned order was not in the welfare of the children which being the

paramount interest was ignored by the trial court.

9. Mr. Akhil Sibal, learned counsel for the mother, contended that the

statement of the children relied upon by the Trial Court was the one

after they had spent some holidays with the mother and that the

statement was the one nearest in time to the custody order, therefore it

ought to have been and was correctly taken into consideration. He

contended that besides there was no impediment or bar upon the

Court to interact with the children to ascertain their preference.

10. Having heard the learned counsel and considered the facts of the case,

this Court is of the opinion that the Family Court has considered all

aspects of the case and addressed itself primarily as to the interest and

welfare of the children before concluding and ordering that their

custody should be given to their mother. This Court is also conscious

that the girls aged about 7 to 9 years would need due care and

attention of their mother more than anybody else. At this tender phase

in their life, it is a mother who would be more aware and alive to their

emotional and physical needs and the father being a senior officer in

the Army -- being on call of duty - may not be able to attend to these

delicate requirements.

11. The learned counsel for the appellant relied upon three decisions

R.V.Srinath Prasad v. Nandamuri Jayakrishna & Ors. AIR 2001 SC

1056, Athar Hussain v. Syed Siraj Ahmed & Ors. AIR 2010 SC 1417

and Sheila B.Das v. P.R. Sugasree AIR 2006 SC 1343. In the first

case, the Supreme Court held that: "custody of minor children is

sensitive. It is also a matter involving of sentimental attachment. Such

a matter is to be approached and tackled carefully. A balance has to

be struck between attachment and sentiments of the parties towards

the minor children and welfare of the minors, which had paramount

interest." The subsequent other two cases also are on the same lines

but focusing primarily on the welfare of the children irrespective of

the allegations that the parties may have made against each other.

12. During the course of the hearing the learned counsel for the

respondent mother had offered - upon instructions from her, who is

present in the court - that keeping in view that the children are in the

middle of their academic session and would have their final exams

commencing shortly - and she being a teacher at Amity International

School and hence alive to this fact would be ready and willing to shift

to Lucknow simply to be with and take care and custody of her

daughters so as not to disturb their academic session provided

however that she would be free to move the children to Delhi to have

them admitted in Army Public School or Amity International School

or such other prestigious schools as may be suitable or convenient and

appropriate for their further studies after their final examinations are

over. Although in terms of the impugned order which grants

immediate interim custody to the mother and for her to shift the

children to Delhi even during mid-session academic session, the

willingness of the mother to move to Lucknow clearly shows her

bona fides and her concern for the welfare of the children. This Courts

notices that the mother has expressed her willingness to relocate from

Delhi to Lucknow albeit temporarily even though she has a regular

job as a school teacher in Amity International School, Noida merely

for the overall benefit and psychological health of her daughters and

in their academic interest too.

13. This Court has perused the letters purportedly written by the children

and finds that the language used and content of both near identical

especially in the beginning and the end i.e. : "Dear Papa, ....... I want

to stay with you." Indeed the expressions used and the flow of thought

are such as would not be ordinarily attributable to a 9 year old child

and certainly not to a 7 year old. Likewise the identical allusion by

both of them to their mother as "that lady" appears strained and

contrived, if not downright unnatural. They both have the appearance

of being dictated by somebody else and for that reason, facially,

cannot be relied upon. Indeed, it bodes an unhealthy surrounding and

atmosphere for the children if they are indeed dictated to write such

unfortunate letters about their own mother to their father with whom

they reside.

14. Counsel for the appellant had during the hearing urged that the Family

Court Judge was biased and showed it during the hearing especially in

the manner of conducting the interview with the child. No

contemporaneous affidavit or application alleging bias appears to

have been moved to enable the Judge to deal with such allegations.

Furthermore, the grounds urged are general in nature. Appellate

Courts cannot be expected to render findings of bias on the basis of

such tenuous pleadings and materials. Again, the argument that this

Court should disregard the observations and impressions of the Trial

Court since on two separate occasions, the Judges of this Court

recorded contrary observations is unpersuasive. There orders were

not final; but made tentatively and cannot override the obligation of

their Court to consider the correctness or soundness of the impugned

order, and the overall welfare and well being of the two children.

15. For the above reasons, we are of the opinion that the impugned

judgment and order does not suffer from any infirmity and does not

call for any interference. However, keeping the larger interest and

care of the minor child and especially the fact that the removing them

from the school namely City Montessori School, Lucknow at this

stage could be upsetting to them, the Court hereby directs as follows:

(i) The respondent-wife, in line with the statement made on her

behalf, shall move to Lucknow in a week's time and the custody of

the children shall be handed over to her on or before 30th December

2013.

(ii) The children shall remain in the custody of the mother-

respondent thereafter during the pendency of the proceedings in the

Family Court. The appellant and the respondent-wife shall ensure that

the transfer certificates of two children are obtained to ensure their

smooth admission into the Army Public School in Delhi or Noida or

some other school of the like nature in the forthcoming academic

session 2014-2015. The respondent-wife shall not deny reasonable

visitation rights to the father which shall be worked out mutually in a

spirit of co-operation.

(iii) The Trial Court shall proceed to record the evidence and

submissions of the parties and after adjudicating upon the merits of

the petition for custody render final judgment at its earliest

convenience preferably by 31st May, 2014. The Trial Court shall

proceed with the matter unaffected by the observations made in this

order as to the merits.

(iv) The present direction shall bind the parties and be subject to

final orders in the custody petition.

16. To give effect to the above directions, counsel for the parties shall be

present before the Guardianship Court on 6 th January, 2014. This

Court hereby clarifies that it has not expressed its approval with

respect to the Trial Court's observations as regards the appellant's

alleged matrimonial relationship. Those are ultimately matters for

trial, and nothing stated or observed here shall be construed as an

expression of the merit of either party's claim which has to be decided

finally, after considering rival contentions and the materials placed on

the record of the Trial Court.

17. The appeal is dismissed, subject to the above modifications. No costs.

Order Dasti to both parties.

NAJMI WAZIRI (JUDGE)

S. RAVINDRA BHAT (JUDGE) DECEMBER 18, 2013 RN