Manipur High Court

Inaobi Singh Maibam vs Huidrom Omila Devi on 19 May, 2022

KABORA Digitally signed
MBAM by KABORAMBAM
                                      IN THE HIGH COURT OF MANIPUR
SANDEE SANDEEP    SINGH
        Date: 2022.05.19                        AT IMPHAL
P SINGH 14:34:13 +05'30'




                                        MC (Crl. Rev. P.) No. 10 of 2019
                                        [Ref: Cril. Rev. P. No. 4 of 2017]

                           Inaobi Singh Maibam, aged about 43 years, s/o M. Yaima
                           Singh, working as Mobile Scientific Officer, Forensic Science
                           Laboratory, Pangei, Imphal East District, P.S. Lamlai, and
                           having the permanent address at Tentha Khunjao Makha, P.O.
                           Wangjing, P.S. Khongjom, Thoubal District, Manipur-795148

                                                                                        Applicant
                                                     -Versus-
                           Huidrom Omila Devi, aged about 41 years, d/o H. Budhi
                           Singh, resident of Khoyathong Pukhri Achouba Mapal,
                           Nagamapal Road, Imphal West District, Manipur.
                                                                                  ... Respondent

                                                       BEFORE
                       HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR

                    For the applicant                         : O. Kiranjit, Advocate
                    For the respondent                        : Dr. RK Deepak, Advocate
                    Date of reserving of Order                : 16.05.2022

                    Date of delivery of Order                 : 19.05.2022


                                                      ORDER

Sanjay Kumar (C.J.):

[1] Having secured a decree of divorce by mutual consent, the

estranged couple are still at loggerheads over the modalities of the father's

visitation rights. Born on 02.10.2013, their son, Thoingamba Maibam @

Mangal Maibam @ Abungo Maibam, is yet to complete 9 years of age.

MC (Cril. Rev.P. No. 10 of 2019. Page 1 The applicant-father's right to visit his son stands settled by the

order dated 04.09.2017 passed by the Supreme Court in Criminal Appeal No.

1568 of 2017. Therein, the Supreme Court observed that it was indeed a sorry

state of affairs that the father had not been able to visit the child during the

preceding three years and directed the respondent-mother to co-operate fully

to see that the child gets to see his father on every 2nd and 4th Sunday from

10:30 am to 2:30 pm. It was further observed that if there was any problem in

doing so, it would be open to the father to approach the Supreme Court

immediately. The appeal was accordingly disposed restoring the judgment

dated 05.12.2016. This judgment was passed by the learned Judicial

Magistrate First Class, Imphal East (for short, 'JMFC'), in Cril. Misc. (DV) Case

No. 5 of 2015 {Ref: Cril (C) Case No. 162 of 2014/DV Act 14/2014}. By the

said judgment, the learned JMFC had permitted the father to visit the child

twice a month, i.e., on the 2nd and 4th Sunday of every month, from 10:30 am

to 2:30 pm. A person authorized by the mother was permitted to be present

during the visit and the venue was left to the convenience and consensus of

the parties. In the event they failed to decide upon the location, the learned

JMFC directed that the visit should take place at the Cheirap Court Complex.

[2] Thereafter, the father approached the Supreme Court by way of

M.A. No. 620 of 2018 (IA No. 28980 of 2018) in Criminal Appeal No. 1568 of

2017, seeking modification of the order dated 04.09.2017 passed by it earlier.

However, this application was dismissed as withdrawn on 21.03.2018 but the

Supreme Court gave liberty to the father to move the High Court for

appropriate directions.

MC (Cril. Rev.P. No. 10 of 2019. Page 2 [3] Instead of approaching this Court, the father then filed Cril. Misc.

(DV) Case No. 7 of 2018 [Ref: Cril. (C) No. 162/2014 DV 14/14] before the

learned JMFC seeking alteration and modification of the earlier order dated

05.12.2016 passed in Cril. Misc. (DV) Case No. 5 of 2015. The alteration that

he sought was that a representative of the mother should not be permitted to

be present during his visit and to allow him to take the child for outings and to

buy clothes during the visitation hours.

[4] This miscellaneous case was disposed of by the learned JMFC on

03.11.2018, permitting the father to visit the child on the 2nd and 4th Sunday of

every month from 10:30 am to 2:30 pm at the Legal Aid Clinic, Cheirap Court

Complex, in the presence of para-legal volunteers. The learned JMFC barred

the entry of the representatives of the mother inside the visitation room and

directed that any person accompanying either the mother or the father should

remain outside the building and should not be present either at the door or

inside the Court Building at Cheirap, where the Legal Aid Clinic was located.

The father was however not permitted to take the child outside or beyond the

Legal Aid Clinic room.

[5] This order was subjected to challenge by the mother in Cril.

Appeal Case No. 3 of 2018 before the learned Sessions Judge, Imphal East.

The appeal was disposed of, vide order dated 22.11.2018, altering the order of

the learned JMFC only to the extent of barring the entry of the representatives

of the mother inside the visitation room. The learned Sessions Judge was of

the opinion that doing so would be against the spirit of the order of the

Supreme Court and accordingly set aside the said restriction.

MC (Cril. Rev.P. No. 10 of 2019. Page 3 [6] Aggrieved thereby, the father filed Cril. Revision Petition No. 38

of 2018 before this Court. However, the said revision was dismissed as

withdrawn by a learned Judge of this Court, giving liberty to the father to file

an appropriate application in Cril. Rev. Pet. No. 4 of 2017. Perusal of the said

order reflects that the learned Judge was of the opinion that the father had no

right to file an application for modification before the learned JMFC as the

Supreme Court had given him liberty to approach the High Court and not the

learned JMFC. However, the learned Judge did not invalidate either the order

dated 03.11.2018 passed by the learned JMFC or the appellate order dated

22.11.2018 passed by the learned Sessions Judge. Those orders have

therefore attained finality.

[7] While so, taking advantage of the liberty granted by the learned

Judge while permitting withdrawal of Cril. Revision Petition No. 38 of 2018, the

father filed the present miscellaneous case. His prayer is to modify the

judgment dated 05.12.2016 passed by the learned JMFC, by disallowing the

mother or any of her representatives from being present during the visitation

hours and to allow him to meet his son in their absence. He also prayed for

liberty to take out his son for buying clothes, toys, etc., during that time and

to prohibit any form of recording/photography by the mother or her

representatives during the visitation.

[8] Heard Mr. O. Kiranjit, learned counsel for the applicant-father;

and Dr. RK Deepak, learned counsel for the respondent-mother.

[9] At the outset, it may be noted that the right of the father to visit

and spend time that with his young son stands protected by the order of the

MC (Cril. Rev.P. No. 10 of 2019. Page 4 Supreme Court. It is only in respect of how such visitation rights are to be

exercised that there is controversy. It appears that the father and son have

not had an effective visit for a long time now, be it for whatever reasons.

[10] Though the earlier orders passed by the learned JMFC and the

learned Sessions Judge, Imphal East, modifying the judgment dated

05.12.2016 have attained finality, the fact remains that liberty was given to

the father by the Supreme Court and then, this Court, to move an application

for modification in Cril. Rev. Pet. No. 4 of 2017. That apart, this Court would

always be entitled to exercise parens patriae jurisdiction in relation to children

residing within the State. Further, what is of paramount importance in a

matter of this nature is essentially the welfare and interest of the child and not

technicalities. This Court interacted with the child separately on 26.04.2022. As

he was not comfortable with either Hindi or English, Ms. Pinky Heigrujam, Law

Assistant, attached to this Court, was asked to translate. This Court found the

child to be unfamiliar with his father and he showed clear signs of tutoring to

speak against him. He did not even respond to his father's overtures, when he

was called in. In any event, as the Supreme Court already protected the

father's right to visit the child, the reluctance of the child cannot be a ground

to bar such visitation rights at this stage. All the more so, considering his

tender age and the need for parental love and guidance from both parents.

[11] It appears that, during the visitations earlier, the maternal

grandmother of the child used to accompany him but her presence, as per the

para-legal volunteers proved to be counter-productive. Though allegations

were leveled against the said para-legal volunteers, this Court is not inclined to

MC (Cril. Rev.P. No. 10 of 2019. Page 5 accept that they would have any personal prejudice or bias in the matter,

being complete strangers to both parties. At this stage, when the child is

clearly not at ease in the company of his father, it would not be appropriate to

allow the father to be with or take the child out on his own.

[12] As the rigours of the pandemic fortunately seem to have passed,

it would be appropriate that the father is permitted to meet the child and

spend time with him, as directed earlier, so as to form and strengthen a bond

with him. The visitation rights of the father shall be implemented in the

following terms on a tentative basis and until further orders: -

(i) The father is permitted to visit the child on the 2nd and 4th

Sunday of every month from 10:30 am to 2:30 pm.

(ii) The venue shall be the Legal Aid Clinic or any other suitable

premises in the Cheirap Court complex.

(iii) The father shall come to the venue alone and shall not be

accompanied by any relation or friend.

(iv) The child shall be brought to the venue by any relation of the

mother, except the maternal grandmother. It appears that

apart from her father, she has 3 sisters and 2 brothers.

However, her representative/relation shall not enter into the

room where the right of visitation is exercised by the father

and shall remain outside during such time.

(v) The father shall spend time with the child within the room in

the presence of 2 para-legal volunteers, to be nominated by

MC (Cril. Rev.P. No. 10 of 2019. Page 6 the Member Secretary, Manipur State Legal Services

Authority. Facility shall be provided by the State/District Legal

Services Authority to enable the volunteers to record the

visitation and such recordings shall be retained either on a

pen drive/hard drive/compact disk. The expenses to be

incurred in this regard shall be borne by the father.

(vi) If there are any untoward incidents or any other incident

worthy of being taken note of, the para-legal volunteers shall

submit a report directly to the Registrar General of this Court.

(vii) The father may present clothes and toys to the child during