Smt. Vibha vs Sh. Rama Nand
2013 Latest Caselaw 4961 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                               Date of Decision: 29.10.2013

+      MAT. APP. (F.C.) NO.30 OF 2013 & CM 13301 OF 2013


       SMT. VIBHA                                      ..... Appellant
                          Through: Mr.Maninder Singh, Mr.Vivek
                          Chaudhary, Mr.Ajay Pipaniya, Mr.Rohit Arora,
                          Ms.Ekta Vats and Mr.Mandeep Singh, Advocates

                          versus

       SH. RAMA NAND                            ..... Respondent

Through: Mr.Manoj Lohat, Mr.Y.P.Luckaria, Advocates.

CORAM:

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

% MR. JUSTICE S.RAVINDRA BHAT (Open Court)

1. The present appeal is directed against the order dated 9th May, 2013 of

the Family Court, disposing off GP no.12/2010. Those proceedings

have been initiated by the respondent (hereinafter referred to as

'grandfather'), for the custody of the minor child named Lakshay.

2. The brief facts of the case are that marriage between Late Anipal and

the present appellant/Vibha (hereinafter referred by her name)

solemnized on 07.12.1996. Out of the said wedlock, one male child

Lakshay was born on 14th August, 1998. Unfortunately, on the night

intervening 27th/28th August, 1999, Anipal committed suicide by

hanging himself. Lakshay is now 15 years of age.

3. Concededly, Vibha had exclusive custody of Lakshay till the

grandfather initiated the present proceedings under sections 7, 8 and

25 of the Guardianship and Wards Act, 1890 on 6th January, 2005.

This move was apparently triggered by Vibha's re-marriage on

23.12.2004.

4. In the petition, the grandfather alleged that since Vibha was a full

time employee working as a Teacher, she had no time to take

sufficient care for the welfare and benefit of her child-Lakshay. The

grandfather was of the opinion that Vibha's remarriage was likely to

affect the physical and emotional health of the child.

5. Vibha contested the proceedings. She is a post graduate Teacher

working with St. Anthony Girls Senior Secondary School, where she

continues to be employed. She denied the allegations about her

inability to take care of her minor son Lakshay and stated that her

conduct as a mother was beyond reproach and that Lakshay was hale

and hearty and happy child and that if any relief as sought for by the

grandfather, would be granted, its impact would not be in the larger

benefit and welfare of Lakshay.

6. After considering the submissions, the trial court took note of the

decision of the Supreme Court in Shyamrao Maroti Korwate v.

Deepak Kisanrao Tekam, 2010 (10) SCC 314 and summarized the

legal position which the Guardianship Court had to take into

consideration in the following manner:

"17. From the judicial precedents, for determining the welfare of the minor child, it need to be addressed the following guiding ingredients which are in brief enumerated herein below:-

     (i)      Where the child will be more happy.

     (ii)     Who is in a better position to look after the physical and
              mental development of the minor.

     (iii)    Who can give more comfort.

     (iv)     In whose care the welfare of the minor is more secure.

     (v)      Who has the capacity to provide for a better education and
              round the clock look after the child.

     (vi)     Who would be available by the side of the child when in
              need.

(vii) Who would look after the emotional aspect, social setup, good education, career building and nurturing of the child as a good human being.

(viii) Where the child will have congenial atmosphere, healthy for his growth and overall development.

(ix) Where the child can be developed well, keeping in mind the ethos and as a better Indian citizen.

(x) Where he will develop as a proper human being having progressive attitude and not having constricted thoughts and outlook towards life.

7. The Family Court, thereafter, observed that the relevant circumstances

including the grandfather's allegations that he was better suited to be

the guardian and take care of the minor child. The Court rejected the

allegations about the unsuitability of Vibha on the ground that she

was facing criminal charges, noticing that the entire criminal

proceedings had been quashed by an order of the High Court under

section 482 Cr.P.C. on 25th October, 2010. The Court rejected the

second submission of the grandfather i.e. of Vibha's remarriage,

observing that marrying again is no anathema as long as the Court is

satisfied that the welfare and interest of Lakshya are subserved by

keeping him with the parent who has the custody of the minor child.

The Court observed in this respect that nothing at all has come on

record that either he is not treating the minor child properly or he is

ill-treating him or not taking care of him or not devoting time to him

or not accepted him as his son or is not looking after his welfare. The

natural corollary is that he must be taking care of the minor child

properly and without any kind of complaint. Thus by marrying

again, it cannot be said that respondent is incapable of taking care of

the minor child due to which the custody could be shifted.

8. The trial court similarly rejected the unsuitability of Vibha on the

ground that she was financially unsound, observing that she was

drawing Rs.45,000/- per month as salary as against the grandfather's

monthly income i.e. Rs.36,000/-. The Court most importantly stated

that the other sons of the respondent had separated from him and there

was hardly any other member who can look after Lakshay. The Court

took note of the progress reports of the child which were produced as

Ex.DW1/A. The learned Judge observed that Lakshay was healthy-

mentally and physically - and was excellent in academics. It was

accordingly concluded that disturbing the custody of the child at this

stage could do more harm than good and it would not be helpful for

his overall development and growth. When the Family Court had

interacted with the child, the child had shown total disinterest in

meeting with the petitioner. This, the Court noted however, would

not suffice, as far as overall development and growth is concerned.

The Court observed that it would be reasonably justified that he

should have some meetings with his grandfather.

9. After arriving at the above conclusion, the Court even while rejecting

all the submissions of the grandfather proceeded to grant visitation

rights to him by directing that he should have access to the child at

least once in a week preferably on Saturday between 10.00 am to 5.00

pm and that the grandfather should also be allowed to meet the child

in one of the major festivals in a year as per the convenience of the

parties.

10. The appellant/Vibha argues that after substantially concluding that the

grandfather i.e. the respondent did not prove the allegations, the Court

should not have exercised its discretion to grant visitation right. It

was submitted in this regard that the custody proceedings which

culminated in the impugned order in the instant case were initiated

more than five years after the death of Anipal and only after Vibha's

re-marriage. It was submitted that there is reason to suspect the

proceedings as having been fuelled by some kind of spite against

Vibha.

11. The learned counsel also emphasised the fact that the custody

proceedings were, along with the criminal proceedings initiated at the

behest of the respondent and it was only in 2010 that the High Court

quashed the criminal proceedings. It was further submitted that

having regard to the acrimonies which existed between the parties, the

visitation directions embodied in the impugned order, do not amount

to sound exercise of discretion. The learned counsel emphasised that

the court itself has recorded in the impugned order that upon

interaction, Lakshya had shown total disinterest in meeting his

grandfather. In these circumstances, the grant of visitation right was

not warranted.

12. The learned counsel for the respondent/grandfather, who moved the

petition, argued on the other hand that the impugned judgment does

not call for any interference. It is submitted that even though the

larger relief of custodial rights was claimed, the Guardianship Court

acted well within the limits of its jurisdiction to restrict the relief to

visitation rights only. The learned counsel submitted that even though

the custody might be with one or the other individual or spouse, the

right of the petitioner to claim visitation right cannot be denied. To

support this argument, the learned counsel relied upon the judgment

cited as Smt. N.Nirmala v. Nelson Jeyakumar (1999) 3 SCC 126.

13. The grounds disclose that as to the essential facts, there is no dispute.

The parents of Lakshya, the minor child were married in 1996; he was

born in 1998. In 1999, his father (Anipal) committed suicide.

14. The grandfather's relative inaction for the period between 1999 and

2005 is undeniable. Apparently, the proceedings which have led to

this appeal were triggered by Vibha's remarriage on 23rd December,

2004; three weeks later, the grandfather - on 6th January, 2005

initiated the present proceedings claiming custody of Lakshya.

15. The findings arrived at in the impugned order are clear enough as to

where the larger interest and welfare of the minor child lie. The Court

recorded that the grandfather apparently did not make any attempt till

initiation of the guardianship proceedings even to contact or support

his grandson. Furthermore, this Court is also of the view that the

relationship between the grandfather and Vibha were acrimonious as

is evident by the pendency of criminal proceedings initiated at the

behest of the grandfather till they were quashed by this Court in

exercise of its power under section 482, on 25th October, 2010. In

addition to this, when the learned Judge of the Family Court

interviewed the child, he expressed 'total disinterest in meeting with

the grandfather'. The Court's discretion or jurisdiction to direct

visitation right cannot be denied. It is one thing to say that the Court

is vested with the power to grant restricted relief when a larger relief

is claimed; in the context of the present case, yet what is an issue is

not the power but the appropriateness of the direction, contained in

para 34 of the impugned order.

16. As regards the acrimonious relationship between the grandfather and

Vibha, evidenced by the criminal proceedings, which lasted well over

a decade between 1999 and 2010, it could hardly form any ground for

doubting the quality of care that is provided by the latter i.e. the

mother of Lakshay. There is no material on record to establish that

the grandfather ever stepped forward to show interest in his

grandson's safe custody to initiate the proceedings for guardianship.

Neither the evidence nor the findings of the learned Judge testified to

his willingness to support the grandchild in any manner. Perhaps

having regard to the nature of the acrimonious relationship, the trial

court thought it fit to condone that lack of initiative. Yet that is a

crucial aspect which ought to have been taken into account by the trial

court.

17. This Court is aware of the fact that for the healthy development of any

child, interaction with his immediate relatives is essential. However,

in the facts of this case, after having concluded that the grandfather's

claim for custody was lacking in merit, since each of the contentions

put forward by him lack substance, and given further the finding of

the Trial Court - that minor Lakshay expressed disinterest in meeting

his grandfather; this Court finds no doubt that the directions impugned

in the present case ought not to have been issued. The findings which

have not been disputed by the respondent's grandfather clearly

established that the child is now at that crucial age where special care

needs to be exercised to safeguard his emotional equilibrium and

intellectual growth. Till date, Lakshay has been excellent in

academics. The mother who has care and custody in the

circumstances has by all accounts been discharging her duties

admirably despite the second marriage in taking care of the minor

Lakshay. Therefore, having recorded that the grandfather's petition

lacked merit, the trial court should not have directed the visitation

right to be given to him once a week. Such directions in the opinion

of this Court do not amount to a proper exercise of discretion.

18. In view of the forgoing discussion, the appeal has to succeed. The

directions contained in para 34 of the impugned order are hereby set

aside. The appeal is consequently, allowed.

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) OCTOBER 29, 2013 RN