Delhi High Court

P N vs G G on 19 March, 2019

$~9
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Date of Judgment: 19.03.2019

+       MAT.APP. (F.C.) 31/2018 and C.M. 9575/2019

        PN                                              ..... Appellant
                             Through:     Mr. Jasmine Damkewala & Vaishali
                                          Sharma, Advocate with petitioner in
                                          person
                             versus

        GG                                                     ..... Respondent
                             Through:     Mr.    Prashant      Mendiratta       &
                                          Mr.Aayush Agarwal, Advocates with
                                          respondent in person
CORAM:
    HON'BLE MR. JUSTICE G.S. SISTANI
    HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)

1. Challenge in this appeal is to the order dated 18.12.2017 passed by the

Family Court. The appellant is aggrieved with the observations and

the directions of the Family Court that the mother has not acted in the

interest of the minor child and has unauthorisedly shifted the child to a

school in Faridabad from Carmel Convent School, Delhi and removed

the child outside the jurisdiction of this Court.

2. Learned counsel for the appellant submits that the mother was forced

to shift the child from Carmel Convent School to Manav Rachna

International School, Faridabad on account of the conduct of the

respondent/husband and on account of the fact that the child was

embarrassed by the visits of her father to the school. She submits that

the Family Court has been influenced by the submissions of the

respondent that an undertaking was given as early as in the year 2013

by the appellant that she would not shift the child from Carmel

Convent School or outside the jurisdiction of Delhi whereas no such

undertaking was given and thus, the order is erroneous and is liable to

be quashed and set aside. She further submits that the mother has

acted in the best interest of the child, since the school at Faridabad is a

far better school than Carmel Convent School, Delhi where the child

was earlier admitted. She submits that in the school where the child is

studying at present, she is now fully accustomed and is happy with her

peer group and in case the order of the Family court is upheld, serious

prejudice would be caused to the rights of the child and the child

would be emotionally disturbed.

3. Mr. Mendiratta, learned counsel for the respondent submits that

having regard to the past conduct of the appellant, the respondent was

always apprehensive that the appellant-mother would remove the child

from the jurisdiction of this Court to deprive the father of visitation,

which she has been successful, for the past almost 6 years. He

submits that repeated orders regarding meeting with the child have

been successively disobeyed by the appellant. Mr. Mendiratta,

counsel for the respondent -father submits that the respondent-father

was always apprehensive that the appellant mother would remove the

child from the jurisdiction of this court. He submits that an

application was filed along with Guardianship petition on 09.01.2013.

In this application, the following prayers were made :

"Wherefore in light of the facts and circumstances of the case and the averments made hereinabove it is most respectfully prayed that this Hon'ble Court may be pleased to:

a) Direct the respondent to immediately restore custody of the minor child to the petitioner;

b) Direct the respondent to not take or cause the minor child to be taken out of the jurisdiction of this Hon'ble Court;

c) Pass any other or further orders as this Hon'ble Court may deem fit and proper in the interests of justice."

(Emphasis added)

4. Attention of this Court is drawn to the reply to this application filed by

the appellant herein wherein it was categorically denied that there was

grave and immediate apprehension that the respondent will attempt to

take the child out of the jurisdiction of this Hon'ble Court. Para 2 of

the reply is reproduced below:

"2. That the contents of para No. 2 of the application are wrong, incorrect and denied. It is denied that there is a grave and immediate apprehension that the respondent will attempt to take the child out of the jurisdiction of this Hon'ble court so as to frustrate the rights of the petitioner or that the respondent wants to use the child as a pawn in

the litigation between the parties, as alleged in the para under reply. It is most respectfully submitted that the respondent has no intention to take the child out of the jurisdiction of the Hon'ble Court. The minor child Vaidehi is studying in Class-1A in a reputed convent school namely Carmel Convents School, Malcha Marg, New Delhi, so the question taking the child out of the jurisdiction of this Hon'ble Court does not arise. The petitioner may be put to the strict of the allegations made by him in the para under reply."

(Emphasis added)

5. Mr. Mendiratta has also drawn the attention of this Court to the order

dated 18.04.2013 which has been referred to in the impugned order.

Mr. Mendiratta submits that the undertaking may not be expressed in

nature, but the respondent father had expressed his apprehension

before the Court of the child being removed from the jurisdiction of

this Court, but the counsel for the respondent had objected to the

same. He submits that this objection would be a tacit

assurance/undertaking on the part of the appellant herein that the child

was not being removed from the jurisdiction of this Court.

It is next contended that in case the appellant had cogent

reasons to remove the child from the jurisdiction of this Court, the

father should have been informed if not consulted or atleast leave of

the Court should have been sought knowing fully well that the father

had repeatedly brought to the notice of the court that he feared that the

child would be removed from Delhi. Counsel further submits that in

line with the apprehension, the respondent filed two subsequent

applications, prayers of one of the applications, which was filed in the

year 2016, is reproduced below:

"A. Restrain the Respondent from taking the minor child Vaidehi Gangadharan out of the jurisdiction of New Delhi.

B. Restraining the Respondent from getting the name of the Child deleted from the roll of Carmel Convent School, Chanakya Puri, New Delhi and admit her in any other School;

C. Direct the Respondent to regularly send the minor Child to Carmel Convent School, Chankya Puri, New Delhi;

D. pass any other or further orders as this Hon'ble court may deem fit and proper in the facts and circumstances of the case."

(Emphasis added)

6. Mr. Mendiratta submits that in response to this application, the

appellant had pointed out that the child is suffering harassment and

embarrassment at the hands of her father at the school and the minor

was refusing to go to the school, as she was embarrassed to face her

friends and teachers. Mr. Mendiratta submits that even at this point of

time, neither any leave was sought from the Court nor it was disclosed

that the appellant would remove the child from the jurisdiction of this

Court. He submits that this reply was filed on 24.02.2017, a date

which is available on the affidavit annexed to this reply. He submits

that in fact, when the reply was filed, the child had, in fact, been

removed from the jurisdiction of this court.

Mr. Mendiratta also contends that the appellant herein had filed

a transfer petition before the Supreme Court of India seeking transfer

of the Guardianship petition filed by the respondent to the Court at

Faridabad. It is submitted that the transfer petition was dismissed by

an order dated 12.04.2017, the effects would be that the prayer for

removing the child from the jurisdiction of this court was expressly

declined even by the Supreme Court of India. Counsel further submits

that the appellant mother has not acted in the benefit and the best

interest of the child as she has shifted the child from Carmel Convent

School, which is a highly reputed and amongst the best schools of

Delhi, to an unknown school in Faridabad and that too without a

transfer certificate. He submits that the implication of such admission

without a transfer certificate would be that the child would not be

allowed to appear in her Board examinations without a transfer

certificate, as admission to the school at Faridabad cannot be

regularised without the transfer certificate. In response to the

submissions so made, Ms. Jasmine, learned counsel for the appellant

submits that the appellant is single handedly bringing up her daughter

and even no maintenance is being paid, and she has acted in the best

interest of her child.

7. Mr. Mendiratta at this stage points out that successive applications

made by the appellant for maintenance have been withdrawn to avoid

filing her income affidavit; however, the respondent has already taken

steps to make deposits in the name of the minor child and almost Rs.

10 Lacs, which stand deposited with interest which may accrue

thereon.

8. We have heard learned counsel for the parties and considered their

rival submissions. It is not in dispute that at the time when the

Guardianship petition was filed, the child was residing within the

territorial jurisdiction of this court and she was an ordinary resident of

Delhi. Successive applications filed by the father leaves no room for

doubt that the respondent-father was always apprehensive that the

child would be removed from the jurisdiction of this Court, which is

evident from the fact that his first application was made on

09.01.2013, prayer (b) of which we have extracted above is again

reproduced below:-

"Direct the respondent to not take or cause the minor child to be taken out of the jurisdiction of this Hon'ble Court"

It is also evident that this prayer was pressed when the matter

was listed in Court on 18.04.2013, but the apprehension of the

respondent was refuted and objected to by the appellant. The

respondent thereafter filed two applications, prayer (a) of one of the

applications we have reproduced in para 4 aforegoing.

9. We also find that although parties have been filing a large number of

applications, which is evident upon reading the impugned order, but

the appellant did not deem it appropriate to either seek leave of the

Family Court much less consult/inform the respondent, who is the

father of the child before removing the child from the jurisdiction of

this court and from a highly reputed school of Delhi to a

comparatively unknown school at Faridabad, where she is currently

studying.

10. We find that in reply to the first application filed on 09.01.2013, the

respondent's apprehension of the child being removed was refuted by

the appellant , as is evident upon reading of the reply, which we have

extracted in above-mentioned para 4 and we reproduce again:-

"2. That the contents of para No. 2 of the application are wrong, incorrect and denied. It is denied that there is a grave and immediate apprehension that the respondent will attempt to take the child out of the jurisdiction of this Hon'ble court so as to frustrate the rights of the petitioner or that the respondent wants to use the child as a pawn in the litigation between the parties, as alleged in the para under reply. It is most respectfully submitted that the respondent has no intention to take the child out of the jurisdiction of the Hon'ble Court. The minor child Vaidehi is studying in Class-1A in a reputed convent school namely Carmel Convents School, Malcha Marg, New Delhi, so the question taking the child out of the jurisdiction of this Hon'ble Court does not arise. The petitioner

may be put to the strict of the allegations made by him in the para under reply."

(emphasis added)

11. The Supreme Court in the catena of the judgment has held that

admissions in pleadings and judicial admissions made by the parties

before a judge during the course of the litigation need not to be proved

and stands binding on the parties, whereas the term admissions is

inclusive of both the express and implied admissions. In the case of

Nagindas Ramdas v. Dalpatram Ichharam reported at (1974) 1 SCC

242 in its paragraph 27 in somewhat different facts, the Supreme

Court categorically held as under:-

"27. From a conspectus of the cases cited at the Bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could [Ed.: The word "could" has been emphasised in original.] be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions

which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."

(Emphasis added)

12. Further in the case of Ram Niranjan Kajaria v. Sheo Prakash

Kajaria, reported at (2015) 10 SCC 20 in paragraph 23, the Supreme

Court affirmed the position in Nagindas (supra). Although while

dealing with a situation where admission made was being sought to be

withdrawn, the Supreme Court held that admission once made in the

pleadings cannot be permitted to be withdrawn. The relevant

paragraph has been reiterated as under:-

"23. We agree with the position in Nagindas Ramdas [(1974) 1 SCC 242] and as endorsed in Gautam Sarup [Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85] that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava [Panchdeo Narain Srivastava v. Jyoti Sahay, 1984 Supp SCC 594], does not reflect the correct legal position and it is overruled."

13. The learned Family Court has rightly mentioned that despite having

expressly admitting in the pleadings that the appellant-mother will not

shift the child from Carmel Convent School or outside the jurisdiction

of Delhi, removed the child from the school as well as from the

jurisdiction of this Court without even giving any formal intimation to

the Court or to the respondent-father, got the minor child admitted to a

school in Faridabad. Accordingly, we are of the view that there is no

infirmity in the order passed by the Family Court. The Court

deprecates and disapproves the conduct of the appellant as he removed

the child from the jurisdiction of this Court despite giving an

assurance that she had no intention to remove the child out of the

jurisdiction of this Court in reply as extracted in para 4 above. We

also find that the conduct of the appellant would show what she could

not achieve directly as her transfer petition was dismissed; she has

carved out on her own showing scant regard to the rule of law.

14. We are also of the view that by removing the child from Carmel

Convent School and admitting her to another school she has acted in a

very irresponsible manner. The Central Board of Secondary

Education (CBSE) admission rules strictly states that an authentic

transfer certificate duly signed by the head of the institute should be

submitted in the new institution at the time of seeking fresh admission.

The relevant rule has been reiterated below:-

"6. Admission: General Conditions ....iv) Produces:

(a) The School Leaving Certificate/Transfer Certificate signed by the Head of the Institution last attended and countersigned, if required as provided elsewhere, in these Byelaws;

....

8. Admission Procedure ....(iii) If a student applying for admission to a school, has attended any other school, an authenticated copy of the Transfer

certificate in the format given in Annexure I, from his last school must be produced before his name can be entered in the Admission Register."

15. Furthermore, the official website of Manav Rachna International

School, Faridabad clearly mentions the requirement of transfer

certificate in case of any fresh admission under the sailent feature of

the admission procedure. The relevant list has been quoted hereunder:-

"LIST OF DOCUMENTS TO BE BROUGHT AT THE TIME OF ADMISSION

a) 6 passport size colour photographs.

                b)     1 passport size photograph of each parent.
                c)      Address proof (photocopy of the ration card/ electricity
                       bill/ telephone bill)
                d)     Photocopy of report card of last 3 years.
                e)     Photocopy of birth certificate.
                f)     Transfer Certificate, where applicable."

16. We are also of the view that by admitting the child to the school at

Faridabad without obtaining a transfer certificate from Carmel

Convent School, she has not acted in the best interest of the child.

17. Having removed the child from the custody of this court, we do not

find any cogent reasons to direct the Carmel Convent School to issue a

transfer certificate of the minor girl, who was earlier studying in the

school. Additionally, the fact that the transfer petition of the appellant

stands dismissed, is also a factor, which cannot be ignored.

18. In view of what has been stated above, we find no infirmity in the

order passed by the Family Court. Resultantly, the appeal is

dismissed. The order of the Family court shall be complied with

forthwith.

C.M. Appl. No. 9575/2019

19. The application also stands disposed of in view of the order passed in

the appeal.