Telangana High Court

C. Sangeeta Devi vs M/S Chilambi Venkata Laskhmidhar on 21 January, 2021

Bench: M.S.Ramachandra Rao

     HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

           CIVIL REVISION PETITION NO.1109 OF 2020

O R D E R:

In this Revision, the petitioner challenges the order

dt.09.09.2020 passed in I.A.No.239 of 2020 in O.P.No.1730 of 2019

of the Judge, Additional Family Court, Hyderabad.

2. The petitioner had filed the said O.P. under Sections 7 and 25

of the Guardian and Wards Act read with Section 7 of the Family

Court Act before the Judge, Additional Family Court, City Civil Court

at Hyderabad to declare that she is the guardian of her two minor

children, C.V.Udbhava and Aparaajitha, aged 7 and 5 years

respectively, and to grant her permanent custody of both the children.

3. The petitioner and the respondent had got married on

20.02.2011 and the above named children were born during the

subsistence of their marriage.

4. Subsequently, disputes arose between them leading to the filing

of the O.P. by the petitioner.

5. The respondent had filed O.P.No.850 of 2016 against the

petitioner and in I.A.No.608 of 2016 in O.P.No.850 of 2016, the Court

had directed the respondent to bring the children to Legal Cell on 2nd

and 4th day of every month, but the respondent did not comply with

the said order alleging that there is a criminal case pending against the MSR,J ::2:: crp_1109_2020

petitioner under the Juvenile Justice Act. Ultimately, O.P. No.850 of

2016 was dismissed for default.

6. Alleging that the order for visitation rights granted in

O.P.No.850 of 2016 was terminated by the dismissal of the said O.P.,

and since the petitioner had filed O.P.No.1730 of 2019 under Sections

7 and 25 of the Guardian and Wards Act read with Section 7 of the

Family Court Act, the petitioner filed I.A.No.239 of 2020 for grant of

interim custody of her children pending disposal of the O.P.

7. It was also contended that the Court below intended to interact

with the children and also ordered their production in the Chamber of

the Judicial Officer, but the respondent intentionally did not comply

with it, and that the Court below had granted visitation rights in

O.P.No.850 of 2016 even after taking into consideration pendency of

the case under Juvenile Justice Act and though the main O.P. for

divorce was pending.

8. The said I.A.No.239 of 2020 was numbered on 26.02.2020

though it was filed on 11.12.2019.

9. Notice in the I.A. was sent to the respondent through e-mail.

10. The respondent and his counsel did not join for video

conference and so the Section Clerk called the counsel for the

respondent by name Naveen Kumar on telephone, but the said counsel

informed that he had already given 'no objection" for the respondent

i.e he had withdrawn from the case.

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11. Though notice was served on the respondent, the respondent

did not choose to turn up and make any submission. The Section

Clerk of the trail court called the respondent on his mobile, but the

respondent lifted the phone but did not answer the call.

12. The respondent was then set ex parte and the O.P. was posted

to 26.08.2020 for hearing of the I.A.

13. On that date also, neither the respondent nor his Advocate

represented.

14. The Court below then considered the IA. Though it dismissed

the said I.A., it held that the petitioner, being natural mother, has

every right to see the children and she is entitled for visitation rights

and she could visit the minor children in the premises of District Legal

Services Authority, City Civil Court on every 2nd and 4th Saturday of

every month between 2.00 PM and 5.00 PM after reopening of regular

Court.

15. Aggrieved by the observation of the Court below that visitation

rights would operate only after reopening of regular Court, this

Revision is filed.

16. I may point out that the respondent has not filed any CRP

challenging the order passed by the trial court in the IA.

17. Petitioner contends that visitation rights should have been

granted immediately by the Court and Covid-19 pandemic cannot be a MSR,J ::4:: crp_1109_2020

ground to deprive the mother of the love of her own children. It is also

contended that even by virtual mode, visitation rights could have been

permitted through Whats App call daily and that the said aspect has

been overlooked by the Court below.

18. Notice in the CRP was ordered to the respondent and Sri

Bankatlal Mandhani entered appearance on behalf of the respondent.

19. He firstly contended that because the petitioner is an accused in

a case registered under Section 75 of the Juvenile Justice Act, it is a

ground to deny visitation rights to the petitioner.

20. The Court put a question to the counsel for the respondent that

there is presumption of innocence of an accused under Indian Law,

and merely because a case is pending against the petitioner under

Section 75 of the Juvenile Justice Act, the same cannot be treated as a

disqualification unless the case has ended in a conviction of the

petitioner. The counsel for the petitioner had no answer to this.

21. Children need the love and affection of both parents and should

be encouraged to foster a bond with both parents to ensure that they

grow as mature and balanced adults. Whatever be the differences

between the petitioner and the respondent, the respondent who is the

natural mother of the children, cannot be deprived of even visitation

rights to meet her children periodically. Even the children cannot be

deprived of her love and affection. The respondent cannot be allowed

to take advantage of the fact that he has custody of the children and MSR,J ::5:: crp_1109_2020

treat them as his exclusive chattel and deprive the petitioner of even

visitation rights. There is also a serious possibility that he might even

tutor the children and create hostility in their minds towards the

petitioner by not implementing the Court orders on visitation. This

would not be in the interest and welfare of the children at all.

22. So I agree with the conclusion of the Court below that since the

petitioner is the natural mother of both the children, she has every

right to see her children and mere pendency of a case under the

Juvenile Justice Act against the petitioner cannot deprive of her right

to see her own children as it would also affect the mental health and

condition of the minor children. So this plea is rejected.

23. Another contention raised by the counsel for the respondent

was that the Supreme Court in Gaytri Bajaj Vs. Jiten Bhalla1 had

held that the rights of the parents are not the determining factor and

welfare and interest of the children is the paramount consideration.

24. The Supreme Court in the said case observed in paras 13 and 14

as under:

"13. The views expressed in paras 19 and 20 of the Report in Mausami Moitra Ganguli v. Jayant Ganguli [(2008) 7 SCC 673] would require special notice. In the said case it has been held that it is the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody. It was the further view of this Court that the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be

(2012) 12 SCC 471 MSR,J ::6:: crp_1109_2020

appropriate to be considered as binding precedents. Similar observations of this Court contained in para 30 of the Report in Sheila B. Das v. P.R. Sugasree [(2006) 3 SCC 62] would also require a special mention.

14. From the above it follows that an order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court."

25. A perusal of the above paragraphs indicates that the

observations made therein relate to grant of custody of minor children.

It cannot be said that it is not in the welfare and interest of a child to

meet the mother and that the mother should be denied even visitation

rights.

26. The counsel for respondent however placed reliance on para 15

of the said judgment which states as under:

"15. In the present case irrespective of the question whether the abandonment of visitation rights by the wife was occasioned by the fraud or deceit practised on her, as subsequently claimed, an attempt was made by this Court, even by means of a personal interaction with the children, to bring the MSR,J ::7:: crp_1109_2020

issue with regard to custody and visitation rights to a satisfactory conclusion. From the materials on record, it is possible to conclude that the children, one of whom is on the verge of attaining majority, do not want to go with their mother. Both appear to be happy in the company of their father who also appears to be in a position to look after them; provide them with adequate educational facilities and also to maintain them in a proper and congenial manner. The children having expressed their reluctance to go with the mother, even for a short duration of time, we are left with no option but to hold that any visitation right to the mother would be adverse to the interest of the children. Besides, in view of the reluctance of the children to even meet their mother, leave alone spending time with her, we do not see how such an arrangement i.e. visitation can be made possible by an order of the court."

27. In my opinion, these observations relate to the facts of the case

before the Supreme Court and also refer to the alleged abandonment

of visitation rights by the mother in that case, which is not the

situation in the instant case. Therefore, the said passage also cannot

come in the way of the petitioner to have visitation rights

28. Counsel for the respondent then sought to rely on certain

photographs and clauses in a Witness Protection Scheme, 2018

notified by the Union of India to say that the accused and the victim

cannot be permitted to come face to face.

29. The context in which the said Scheme has been framed is to

protect witnesses in criminal cases. No doubt there is a provision

which directs that the witness and accused do not come face to face

during investigation or trial.

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30. But the same cannot come in the way of visitation rights

sought by a natural mother to visit her children, that too, in the

presence and in the premises of the District Legal Services Authority,

City Civil Court, Hyderabad.

31. The petitioner has emphatically denied that there is any threat to

life and safety of the children, and that on the contrary, the respondent

under the guidance of his brother, is depriving her of visitation rights

and that this was also the opinion of the District Child Protection

Officer of Hyderabad District submitted, after counseling, in his

report dt.29.03.2016 addressed to the Station House Officer,

Kachiguda Police Station.

32. As pointed out earlier, the respondent had not even challenged

the order dt.09.09.2020 passed in I.A.No.239 of 2020 in O.P.No.1730

of 2019 of the Judge, Additional Family Court, Hyderabad. Without

doing so, he cannot raise pleas of this nature and continue his non-

cooperative attitude in the matter of visitation rights to the petitioner.

33. Admittedly, this Court passed an order on 30.11.2020 directing

the respondent to produce the minor children in the premises of the

District Legal Services Authority, City Civil Court, Hyderabad on

05.12.2020 and 12.12.2020 between 2.00 PM and 5.00 PM without

fail to enable the petitioner to meet them.

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34. But the respondent had not produced the children. Reports

dt.15.12.2020 of the Secretary, City Civil Court Legal Services

Authority, Hyderabad have been filed which corroborate this.

35. In my opinion, the respondent has no respect for orders of even

this Court and is adopting cantankerous attitude.

36. Accordingly, the Revision Petition is allowed; the order

dt.09.09.2020 in I.A.No.239 of 2020 in O.P.No.1730 of 2019 of the

Judge, Additional Family Court, Hyderabad is modified and the words

"after reopening of regular Court" used in the last paragraph of the

said order are deleted; the respondent shall produce the children

before of District Legal Services Authority, City Civil Court,

Hyderabad on every Saturday of between 2.00 PM and 5.00 PM