Delhi High Court
P vs M K B on 18 February, 2019
$~16 & 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgement: 18th February, 2019
+ MAT.APP.(F.C.) 298/2018
P ..... Appellant
Through: Mr. Sachin Chopra, Mr. S.S. Bhatia,
Mr. Karan Babuta & Ms. Astha
Gupta, Advocates.
Versus
MKB ..... Respondent
Through: Ms. Vijaya Lakshmi Jain, Advocate.
+ MAT.APP.(F.C.) 299/2018
P ..... Appellant
Through: Mr. Sachin Chopra, Mr. S.S. Bhatia,
Mr. Karan Babuta & Ms. Astha
Gupta, Advocates.
Versus
MKB ..... Respondent
Through: Ms. Vijaya Lakshmi Jain, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
1. Both the appeals are set down for final hearing and disposal. The
aforesaid two appeals filed by the appellant arise out of a common
order dated 10.09.2018 passed by the Family Court with respect to
two applications filed by the appellant/wife; one under Section 24 of
the Hindu Marriage Act (hereinafter referred to as 'HMA') seeking
MAT.APP.'s (F.C.) 298 & 299/2018
interim maintenance and the other application was filed under Section
26 of HMA seeking custody/visitation rights for the two children aged
about 13 years and 8 years at the time of the passing of the order.
2. Both the appeals have been heard together, as they arise out of a
common order and are being disposed of by a common judgment.
3. The prayer made in MAT.APP.(F.C.) 298/2018 reads as under:
"It is therefore prayed that this Hon‟ble Court may graciously
be pleased to:
a) enhance the maintenance to Rs. 27,500/- per month to the
appellant-wife apart from litigation expenses of Rs. 55,000/- as
prayed in HMA No. 636/2018;
b) Pass such other order as this Hon‟ble Court may deem fit
and proper."
4. The prayer made in MAT.APP.(F.C.) 299/2018 reads as under:
"It is therefore prayed that this Hon‟ble Court may graciously
be pleased to:
a) set aside the order dated 10.09.2018 passed by Madhu Jain,
Judge Family Court (South East) Saket, New Delhi, declining
the prayer of the appellant for custody and to meet the minor
children in HMA No. 636/2018;
b) the appellant may be granted custody of the minor children
so that she is able to meet them being their biological mother;
c) pass such other order as this Hon‟ble Court may deem fit and
proper."
5. The necessary facts required to be noticed for the disposal of these
appeals are that the marriage between the parties was solemnized on
12.02.2005 as per Hindu rites and ceremonies. One daughter was born
in the year 2006 and a son was born in the year 2011 out of the said
MAT.APP.'s (F.C.) 298 & 299/2018
wedlock. Both the children are in the care and custody of the
husband/respondent. The parties have been residing separately since
12.03.2018. A divorce petition under Section 13 (1)(ia) of HMA was
filed by the respondent/husband in the month of March, 2018 which is
pending.
MAT.APP.(F.C.) 298/2018
6. Mr. Sachin Chopra, learned counsel appearing for the appellant/wife
submits that the Family Court has lost track of the fact that the
respondent/husband is a Gazetted Officer with the Government of
India and working as a Private Secretary in the Parliament House.
The counsel further submits that the Family Court has erred in
awarding maintenance of Rs. 6,000/- per month while relying upon
highly inflated deductions from his salary. Assuming the deductions
to be true, the respondent/husband is left with an amount of Rs.
69,000/- per month which has been duly admitted by the
respondent/husband in para 9 of the reply to the application under
Section 24 of HMA. It has also been admitted in the reply to the said
application that he is earning gross salary of Rs.1,11,793/- per month.
7. The counsel for the appellant/wife contended that the father of the
respondent/husband is a retired Government Servant who is getting
adequate Family Pension, and thus, his parents are not dependent upon
the respondent/husband for their needs.
8. The counsel for the appellant/wife submits that she has no independent
source of income and it would be difficult for her to find a job at this
juncture, when she has turned 41 years of age. In this backdrop, the
MAT.APP.'s (F.C.) 298 & 299/2018
award of maintenance to the tune of Rs. 6,000/- per month is highly
dis-proportionate to the earnings of the respondent/husband. Reliance
has been placed on the case of Manish Jain vs. Akansha Jain
reported at (2017) 15 SCC 801, more particularly para 16 whereby the
Hon'ble Supreme Court held that „an order for maintenance pendente
lite or for costs of the proceedings is conditional on the circumstance
that the wife or husband who makes a claim for the same has no
independent income sufficient for her or his support or to meet the
necessary expenses of the proceeding. It is no answer to a claim of
maintenance that the wife is educated and could support herself.
Likewise, the financial position of wife‟s parents is also immaterial.
The court must take into consideration the status of the parties and the
capacity of the spouse to pay maintenance and whether the applicant
has any independent income sufficient for her or his support.
Maintenance is always dependent upon factual situation; the court
should, therefore, mould the claim for maintenance determining the
quantum based on various factors brought before the court.‟
9. The appeal is opposed by Ms. Vijaya Lakshmi Jain, counsel for the
respondent/husband. She submits that the learned Family Court has
rightly considered that both the children are in care and custody of the
respondent/husband who is bringing them up single handedly. Both
the children are studying in good schools in Delhi and after
considering all the factors, the learned Family Court has awarded
maintenance of Rs. 6,000/- per month alongwith the litigation
expenses of Rs. 11,000/- to the wife.
MAT.APP.'s (F.C.) 298 & 299/2018
10. We may note that the current pay slip of the respondent/husband for
the month of January, 2019 has been placed on record. Reading of the
same would show that the respondent/husband is earning monthly
gross pay of Rs.1,22,637/-.The net salary after deductions comes out
to be Rs. 71,461/- per month.
11. Applying the law laid down in the case of Manish Jain (supra), to the
facts and circumstances of the present case, we are of the view that the
Family Court has taken into account all the factors, but has failed to
consider that the maintenance so awarded should not be so low as to
make the order meaningless. Taking into consideration the settled
position of law and having regard to the fact that it is not disputed that
the respondent/husband is getting salary of Rs. 71,461/- per month, the
impugned order dated 10.09.2018 is modified to the extent that the
respondent/husband will pay maintenance to the appellant/wife @
10,000/- per month. All arrears will be cleared by the
respondent/husband within three months from today.
MAT.APP.(F.C.) 299/2018
12. Mr. Sachin Chopra, counsel for the appellant/wife submits that since
the respondent/husband is taking care of all the needs of the children
who are economically dependent upon him and thus, more beholden
towards their father. The counsel further submits that custody or
visitation of the children is necessary for the proper growth of the
children including physical as well as mental development, and thus,
the counsel prays for the custody or visitation rights of the minor
children. It is also submitted by the counsel that the children should
MAT.APP.'s (F.C.) 298 & 299/2018
not be deprived of the love and affection of their mother-appellant
herein. Mr. Chopra submits that the mother/appellant is willing to
undertake to the Court that she will not talk ill before the children
during the visitation, if granted to her.
13. Ms. Vijaya Lakshmi Jain, counsel for the respondent/husband has
strongly opposed the prayer made in the appeal seeking
custody/visitation rights of the children aged 12 years and 07 years
and has taken us through the impugned judgment dated 10.09.2018
passed by the learned Family Court to show that there is no infirmity
in the same and the appeal is without any merit.
14. We have heard the learned counsels for the parties and carefully
examined the order of the Family Court. The relevant portion of para
10 of the impugned order dated 10.09.2018 reads as under:
"10........There are two children born from this wedlock,
namely the daughter Ujjaini aged about 12 years studying in
class 8th in Carmel Convent School Chanakyapuri and son
Master Mehul studying in Air Force Bal Bharti School Lodhi
Colony. Both the children were called by the court and I talked
to both of them in the chamber. During interaction with the
children, both the children had many complaints against the
applicant/mother and they stated that she is very abusive and
quarrelsome in nature and even during their examinations she
disturbs them and does not let them sleep and she picks up
quarrels on petty issues. They both stated that they do not want
to meet their mother. Daughter Ujjaini stated that after her
mother has left the house, her performance in the school and
marks in the examinations have improved. Both the children
showed their immense reluctance to meet with the
respondent/mother and when the respondent was called in the
chamber to talk with the children, it may be mentioned that this
case was fixed on 04.08.2018 and on that date, initially the
MAT.APP.'s (F.C.) 298 & 299/2018
respondent came late after lunch to meet with the children
despite the fact that she herself has moved the application for
custody and visitation of the children. Thereafter in the chamber
also, the respondent did not show any inclination to talk with
her children and rather it was the undersigned who persuaded
her to talk with the children and thereafter also she did not
inquire from them about their well being and rather was
complaining against the petitioner to the children like „papa
aise hein, papa waise hei‟ Though at this stage, the court is not
required to go into the merits of the case and without going into
the merits of the case, it would be suffice to say that at present it
will not be in the interest and welfare of the children that the
respondent be given visitation right of the children, as after
talking with the children as well as with the respondent, it does
not seem that at present it will be in the interest and welfare of
the children that they are made to meet the respondent. It is said
that a daughter is the best friend of the mother, but in this case
it was complete opposite. Both the children were so enthusiastic
and were telling the school instances when the respondent was
not present in the chamber and after lunch when the respondent
came and the children met her, then they did not show any
inclination even to talk to the applicant/mother, what to talk
about telling their school instances to her. In these
circumstances, at this stage, it will not be in the interest and
welfare of the minor children, rather it will be exercising force
upon them if they are told to meet their mother regularly in the
Children Room Family Courts, Saket, New Delhi."
(Emphasis Supplied)
15. In the case of Thrity Hoshie Dolikuka v. Hoshiam Shavaksha
Dolikuka reported at (1982) 2 SCC 544, the Hon'ble Supreme Court
held that while dealing with the custody of the minor, the only
consideration of the Court should be the welfare of the child. The
relevant para 17 reads as under:
"17. The principles of law in relation to the custody of a minor
appear to be well-established. It is well-settled that any matter
MAT.APP.'s (F.C.) 298 & 299/2018
concerning a minor, has to be considered and decided only from
the point of view of the welfare and interest of the minor. In
dealing with a matter concerning a minor, the Court has a
special responsibility and it is the duty of the Court to consider
the welfare of the minor and to protect the minor's interest. In
considering the question of custody of a minor, the Court has to
be guided by the only consideration of the welfare of the
minor."
(Emphasis Supplied)
16. Having regard to the observations made by the Family Court in para
10 of the impugned order, which we have extracted in para 14
aforegoing, we are of the view that it may not be possible to allow the
mother/appellant herein to meet the children outside the Court
premises or unsupervised till the children accept their mother and
agree to meet her without convincing them.
17. We have been, in our orders, discouraging the visitation in the Court
premises as we are of the considered view that while fixing the venue
with regard to visitation, the Court must take into account the comfort
level of child/children. The Court must also carefully examine as to
whether the child/children in fact are not comfortable meeting the
mother/father or whether the child/children have been brainwashed by
the mother/father. Wherever there is resistance, it may be advisable to
fix the meeting in the Court premises and supervised. In case the
Court is satisfied that the children are comfortable/happy to be with
the mother/father, in our view, visitation in Court premises is not
desirable. The meeting as far as possible and with the consent of the
parties should be fixed at a place of interest of the child/children as it
would serve a dual purpose. Firstly; the child/children would be happy
MAT.APP.'s (F.C.) 298 & 299/2018
as it would be a place of his/her interest and liking which would
automatically make the child/children look forward to the meeting and
secondly; the meeting would be fruitful. Care should be taken that the
meeting is not at a time when the child/children spend (s) time with
his/her friends or is forced to miss a birthday party or some school
function or outing. However, there are some cases where supervised
visitation is necessary. There are also cases where the parties may not
have sufficient means to meet the child/children outside the Court
premises. In order to make the visitation meaningful, of course,
depending on the age of the child/children, an important factor is the
comfort level of the child/children. Children are more comfortable in
play areas, be it public parks or designated play areas in malls etc. We
have seen that in one of the matters, where a child resisted meeting his
father and on learning that he enjoys reading books, when we offered
the venue of the meeting to be a book store, he readily agreed. Court
must not lose track of the fact that the interest of the child is often lost
among the warring parents. The aim and objective of the Family
Court should be to balance the meeting rights keeping the interest of
the child/children at the highest. In the present case, since the children
are showing resistance in meeting the mother for whatever reason, to
make a beginning, we direct that the children would meet the mother
for two hours in the Children Room, Family Court, Saket Courts, New
Delhi at the first instance. Thereafter, the Family Court, depending on
the comfort of the children, may consider variation of the order and
enlarge the period of visitation and vary the place of meeting, which
would best suit the interest of the children.
MAT.APP.'s (F.C.) 298 & 299/2018
18. Taking into consideration the aforementioned judgment and the
observations made by the Family Court, we are of the view that during
infancy, the children are of impressionable age and the care and
warmth of both the parents is required for the welfare of the children.
We do not want the children to grow up being deprived of the love and
affection of their natural mother who too has a role in the children's
upbringing. We are of the view that although the custody of the minor
children is with the respondent/husband, both the children should also
get sufficient exposure to their natural mother and accordingly, we
direct that at the first instance, the appellant/mother shall meet the
children twice a month in the Children Room, Family Court, Saket
Courts, New Delhi.
19. We may note that we have been discouraging Family Courts from
passing orders regarding parents meeting the children in the Court as
realistically it does not serve any purpose and remains only a paper
order. Neither the parents nor the children would ordinarily gain from
such meeting. Courts should allow and encourage parents meeting the
children at venues as far as possible at place (s) of their liking and
instead of Children Room.
20. This arrangement would be effective after 09.03.2019, keeping in
view the exams of the children. We also direct that the visitation shall
be for one hour for two months in the beginning. The appellant/wife
is also directed not to talk ill against the respondent/husband or his
family members before the children.
MAT.APP.'s (F.C.) 298 & 299/2018
21. For the above reasons, we modify the impugned order passed by the
Family Court in the aforestated terms. Resultantly, both the appeals
are disposed of.
G.S.SISTANI, J.
JYOTI SINGH, J.
FEBRUARY 18, 2019
//rd
MAT.APP.'s (F.C.) 298 & 299/2018
