Delhi High Court
Oshihama vs Delhi Police on 8 August, 2019
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1406/2019
OSHIHAMA ..... Petitioner
Through: Ms. Aishwarya Rao, Advocate with
petitioner in person
versus
DELHI POLICE ..... Respondent
Through: Ms. Kamna Vohra, ASC.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE ASHA MENON
ORDER
% 08.08.2019
1. The present petition has been filed by the petitioner praying inter alia
for grant of full custody of her minor daughter aged about eleven years, who
is presently in the custody of her father and for registration of an FIR under
the POCSO Act, against her husband for abusing their minor daughter.
2. The petitioner is represented by Ms. Aishwarya Rao, learned counsel,
assigned to her by the Delhi High Court Legal Services Committee to appear
on her behalf. Learned counsel submits that the petitioner and her husband
were married in November, 2003 and have been blessed with a daughter. It
appears from the record that the father of the child and husband of the
petitioner had applied for the custody of the minor daughter by filing GP
No. 2266/2018 before the Family Court. Initially, an order was passed by the
Family Court directing that the custody of the child would remain with the
father w.e.f. 7.00 pm on Monday till Saturday school timings and thereafter,
her custody would be transferred to the petitioner/mother w.e.f. Saturday
school timings, till Monday evening up till 7.00 pm. This order was passed
on 28.07.2018. On 16.11.2018, the learned Family Court directed that these
custody arrangements would continue till disposal of the main petition.
3. Ms. Vohra, learned ASC appearing for the respondent, submits that
the petitioner being aggrieved by the order dated 16.11.2018, passed by the
learned Family Court, had preferred MAT. APP. (F.C.) 312/2018, which
was dismissed by the Division Bench as meritless vide order dated
26.03.2019.
4. It appears that subsequently, on 23.04.2019, the father of the child had
moved an application before the Family Court praying inter alia for the
permanent custody of the child. According to the petitioner, the learned
Family Court wrongly passed an order on 03.05.2019, granting the full
custody of the minor to the father while granting the petitioner/mother,
visitation rights to see the child on every Saturday between 3.00 to 5.00 pm
in the visitation room of the Court.
5. Ms. Rao, learned counsel for the petitioner, submits that as a mother
the petitioner is much agitated on account of change of custody orders as
according to her, there was enough evidence to establish that the father had
been sexually abusing the child. Reliance is placed on eight videos of the
CCTV footage and the drawings of the child, which according to the learned
counsel, substantiate the said allegations made by the petitioner. She states
that aggrieved by the order of the Division Bench, the petitioner has
preferred an appeal before the Supreme Court, which is lying under
objections.
6. In this background, we have considered the prayers made in the
present petition. Prayer no.(1) seeks full custody of the minor daughter. But
in the factual background noted above, we are unable to entertain this prayer
regarding grant of full custody of the minor daughter to the petitioner,
though the concern of the petitioner as a mother can be well-understood,
since the Family court as well as the Division Bench has duly considered the
videos relied upon by the petitioner, and she has already sought legal
recourse against the judgment dated 26.03.2019, by approaching the
Supreme Court. As for the reliefs at prayers (2), (3) and (4), learned counsel
for the petitioner states on instructions that the petitioner does not wish to
press the said reliefs. Learned counsel requests that the relief at prayer 5
may be granted which is for issuance of a direction to the Police to register
the FIR against the petitioner's husband on allegations of sexual abuse of
their daughter aged 11 years, who is in his custody.
7. Ms. Vora, learned ASC, submits that a Status Report was filed by the
respondent on 21.05.2019, which we have perused. It is an admitted position
that the petitioner had filed an application under Section 156 (3) of the Code
of Criminal Procedure before the Special Court, POCSO Act, but the same
was dismissed vide order dated 05.11.2018. However, the complaint filed by
the petitioner along with the application under Section 156 (3) of the Code
of Criminal Procedure has been taken cognisance of and treated as a
complaint case under Section 200 Code of Criminal Procedure. The
petitioner is presently leading evidence before the concerned court. She
would have ample opportunities to produce the video clippings/CCTV
footage as evidence before the learned Trial Court to substantiate her case.
8. It may be mentioned here that the learned counsel orally informs the
Court that the order dated 05.11.2018, was challenged by way of a revision
and the said petition has also been disposed of by the concerned Court by
observing that the Trial Court could still issue directions under Section 202
Code of Criminal Procedure for police investigations, if necessary. We are
going by the statements of the counsel as copies of the orders have not been
filed.
9. In view of the above fact situation, we are of the opinion that any
directions to the Police to register an FIR against the petitioner's husband
under the POCSO Act, would be premature. We are not inclined to entertain
the present petition at this stage since the petitioner is seeking legal recourse
before different fora and any observation made by us on merits either ways,
is likely to have an adverse effect.
10. The present petition is accordingly disposed of with liberty granted to
the petitioner to pursue her remedies, both civil and criminal, in accordance
with law.
HIMA KOHLI, J
ASHA MENON, J
AUGUST 08, 2019
bh/MK
