• Interim relief for mother to meet 7 year old daughter

Dear Sir 
             Due to unhuman behavior of my husband I left his home 7 days ago. I have a 7 year old daughter, who is under my husband custody. I am a school teacher in a School of Haridwar, temporary living in a relative home at Haridwar. My Husband has completely isolated my Daughter from me since last 7 days, not even allowing me to even talk to her on phone. Since my daughter is student of same school, where I am teacher, He is not sending her to school since last 7 days. 
             I know getting permanent custody from court takes too much of time, so can I get an interim relief from local family court or nanital high court for following:-
1) Court should order my husband to send our daughter to school daily.
2) since my current residence (relative house, where I am staying for last 7 days) is just 1.5 KM from my husband's home, Can I get visiting power to visit my daughter for 4 hours daily, so that I can take care of her homework & all other things. But I want this under police protection, as my husband is too violent. 
3) when ever my daughter is medically unfit for going school, My husband should inform me & under police protection I shall be allowed to take her to child doctor.

Please tell me Under which section I have to move appeal to local family court or high court?
Is their any High court or supreme court judgement in support of my interim relief request?
Asked 1 year ago in Family Law from Haridwar, Uttarakhand
Religion: Hindu
1. Court hardly send child tol meet his parent. It's the parent who is asked to meet child at his place or at some neutral place.
2.  Terms and duration of visitation depends on discretion of the court. You can nevertheless put such prayers before the court.
3. You can file application under section 25 of the guardian and wards act  in the local court. No direct application lies in high court or supreme court.
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
4.9 on 5.0
1) you have to make application to court seeking your child custody . in said petition make interim application seeking for the interim custody of the minor child , by issuing suitable directions to the respondent to hand over the child during week-ends and all public and school holidays, pending disposal of the above O.P

2) The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute’  the Court held  ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’.

3) gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category 
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
Madras High Court
The vs Varinder Kumar) on 30 April, 2010
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.04.2010

CORAM

THE HON'BLE MS. JUSTICE R.MALA

Application No.4741 of 2009 in O.P.No.522 of 2009




ORDER
The applicant has filed O.P.No.522 of 2009 for the custody of the minor child Vishvas Mady, born on 31.1.1999, aged about 10 years, who is in the custody of his mother, the respondent.

2. During the pendency of the main O.P.No.522 of 2009, the applicant has come forward with this application seeking for the interim custody of the minor child Vishvas Mady, by issuing suitable directions to the respondent to hand over the child during week-ends and all public and school holidays, pending disposal of the above O.P.

3. Heard both sides.

4. Both the parties, i.e. spouses have filed their pleadings by way of affidavit, counter affidavit, rejoinder and reply to the rejoinder and they have put forth their cases and have narrated as to what had happened from the date of engagement of marriage till the respondent-wife left the matrimonial home on 9.9.2009 and both of them have made a character assassination against each other. Those averments are not relevant for the purpose of deciding the application for interim custody of the child during the week-ends and all public and school holidays, pending disposal of the main O.P.

5. It is well settled principle of law that while granting interim custody of the child, the paramount consideration to be taken into account is the welfare of the child. So, this Court is not considering those allegations against each other, which are not materials to be considered in this interim custody application. So, the averments in the affidavit, counter affidavit, rejoinder and reply to rejoinder, are not incorporated in these applications. The arguments advanced by learned Senior Counsel appearing for both sides, are enough for considering the grant of interim custody of the child to the applicant-father of the child.

6. The admitted facts are as follows:

The marriage between the applicant and the respondent was performed on 5.12.1996. The child, minor Vishvas Mady, was born on 31.1.1999. The respondent abruptly left the matrimonial home on 9.9.2009. Hence, the applicant was forced to file this application for the custody of the minor child and also for restitution of conjugal rights before the Family Court. He has come forward with this present application for the interim custody of the minor child during the week-ends and also all public and school holidays.

7. Learned Senior Counsel for the applicant would submit that since the respondent-wife was doing her P.G. Course in field of medicine, at Mangalore, she was not able to give the enjoyment of the fatherhood of the child during the period. She returned to Chennai only in June 2004 and till she left the matrimonial home on 9.9.2009, she was with the applicant-husband under the same roof. Learned Senior Counsel appearing for the applicant would contend that even though both the applicant and the respondent were living in the same house, but the respondent has not permitted the applicant to enjoy the company of his minor son. The respondent alone has been taking care of the child and always she has been keeping away the child from the applicant.

8. Learned Senior Counsel appearing for the applicant would submit that since the child is with the respondent-mother of the child, only interim custody is now sought for. Learned Senior Counsel appearing for the applicant further submitted that the respondent has poisoned the mind of the child and the complaint was given by the respondent only after she left the matrimonial home, and after the filing of the present application, making allegation against the applicant that he has sexually abused the child and also shown some pornographic film in the laptop to the minor son and the respondent's friend's daughter, while they were playing carom-board. Learned Senior Counsel appearing for the applicant further stated that the respondent is a lesbian and she is having relationship with ladies and moreover, when the respondent was in young age, since both of her parents are medical practitioners, she was brought up by her grand-parents and at that time, her maternal uncle was also there and the respondent was subjected to sexual assault by her maternal uncle, and only because of that, the respondent made such serious allegations against the applicant. Learned Senior Counsel appearing for the applicant further submitted that the respondent is affected by Narcissistic Personality Disorder (NPD) and it is not conducive for the minor to be with the respondent and hence, learned Senior Counsel appearing for the applicant prayed for interim custody of the child with the applicant. Learned Senior Counsel appearing for the applicant further submitted that only because of the attitude of the respondent, the minor child expressed his views and so, the views of the minor child need not be taken into account while deciding the interim custody of the child, and hence, learned Senior Counsel for the applicant prayed for the interim custody of the child.

9. Per contra, learned Senior Counsel appearing for the respondent would submit that it is true that the child is with the respondent-mother, because of the serious allegations made against the applicant and if the child is given interim custody to the applicant-father, it will affect the mental faculty of the child and also the psyche of the child. Learned Senior Counsel appearing for the respondent would further submit that the applicant, having made sexual assault on the minor child, the minor child was afraid of seeing his father and to go with the applicant-father and that a complaint has also been given against the applicant. Learned Senior Counsel for the respondent further submitted that a case has been registered against the applicant and the same is pending, and the minor child is one of the witnesses and also the victim and no victim or witness may be handed over to the accused. He prayed for dismissal of the application.

10. During the arguments of the case, both parties made character assassination against each other. The allegations are to be decided only at the time of the disposal of the main O.P. To prove or disprove those allegations, oral and documentary evidence is necessary. At this stage, it has to be decided as to whether the applicant is entitled to interim custody of the child during week-ends and all public and school holidays. On the basis of the documents filed by both parties, and the list of dates and events filed by the applicant, this Court has to decide the factum as to whether the applicant is entitled for the interim custody of the child.

11. From the list of dates and events, dated 22.4.2010, filed by the applicant, it is seen that after the respondent gave birth to the child on 31.1.1999, the respondent joined the Post-Graduation Course in the medical field in Mangalore, during March 2000 and she completed her P.G. Course in June 2004 and returned to Chennai with son Vishvas Mady. Master Vishvas Mady joined school at Chinmaya Vidyalaya. From serial No.17 of the said list of dates and events, it is seen that on 24.12.2007, the respondent abruptly left the matrimonial home with son Vishvas Mady. In paragraphs 8 and 9 of the main O.P., the applicant himself stated that the respondent was keeping the child engaged outside the matrimonial home in the evening hours, which was solely for the purpose of the child being kept away from the companionship of the applicant. In paragraph 11 of the main O.P., the applicant has stated that the respondent left the matrimonial home abruptly along with the son.

12. From the typed set of papers, filed on 22.4.2010, by the applicant, in page 2, a copy of the F.I.R., dated 8.10.2009, has been enclosed, based on the complaint given by the respondent after the present O.P. has been filed on 14.9.2009. In the said F.I.R., it is stated as follows:

" ... I was residing in the residential block of the same address along with my son and my husband Dr.Vivek mady also resides in the same house. However we stayed in separate rooms since the last 2-1/2 years when to protested my shock and dismay I found my husband was sexually molesting and abusing my son who was about 7 years old then, when I protested my husband threatened that if I take any action he will harm my son and myself and take away my son from me. Not knowing what do I have been staying separately in the same house and ensuring that my son is not left alone in the company of my husband. For the last 2-1/2 years I have been living hell suffering the torture and abuses of my husband living in fear of losing my only child. During this time my husband abusing and physically assaulting me. Whenever I protested I was threatened and blackmailed and made to keep quiet for fear of my son's future and also bringing shame to my family. .... "

13. Learned Senior Counsel appearing for the applicant would submit that to get rid of the application, the respondent has come forward with such false and serious charges against the applicant.

14. From the list of dates and events, it is also seen that in January 2008, there was discussion at Mangalore by the families of the applicant and the respondent regarding the behaviour of the respondent towards the applicant and the child and then only, on 7.1.2008, the respondent returned to the matrimonial home at Chennai, which shows that there was a dispute during December 2007 and the respondent was forced to be away from the matrimonial home along with the child and there was discussion between the family members of the applicant and the respondent to resolve the dispute and subsequently, the respondent returned matrimonial home.

15. At this juncture, it is appropriate to consider the F.I.R., as quoted above, in which it is stated that for the last 2-1/2 years, the applicant has misbehaved with the child. These allegations have to be decided only on the basis of the oral evidence. The averments in paragraphs 7 to 11 of the main O.P., clearly show that even both the applicant and the respondent are residing in the same house, but the child is not with the father and the child was with her mother. The real reason for the respondent leaving the matrimonial home along with the minor child, has to be decided only during trial.

16. It is pertinent to note that as soon as the respondent left the matrimonial home on 9.9.2009, along with the minor child, immediately, the applicant gave a complaint to the Deputy Commissioner of Police, Kilpauk, on 10.9.2009, which is filed as Document No.4, at the time of filing the O.P., in which, it is stated as follows:

"From Dr.Vivek Mady, R.K.Gynaec & Maternity Hospital, 866, Poonamallee High Road, Kilpauk, Chennai-600 010.

To Deputy Commissioner of Police, Kilpauk.

Dear sir, I reside at the above mentioned address and I have been married for the last twelve years to Dr.Akhila Bhat who lives with me. We have a son Vishvas Mady who studies in Chinmaya Vidyalaya in Kilpauk. In the last few months, I have noticed a lot of changes in my wife's behaviour and she had been acting strangely, not sleeping, neglecting her own health. Yesterday she had gone out of our house with my son Vishvas and has not returned yet. I do not know the whereabouts of my family. I cannot find the Godrej keys and my bank locker key. I fear for her and my son's safety.

I would request your intervention in finding them and counselling her to restore my family life.

Yours sincerely, Sd/- Dr.Vivek Mady."

17. Before that, even on 6.7.2009, the applicant has given a complaint to the DGP, Chennai, which is mentioned as Sl.No.26 in the list of dates and events filed by the applicant, and in the said complaint, dated 6.7.2009, which is at page 1 of the typed set of papers, dated 22.4.2010, filed by the applicant, it is stated as follows:

"I reside at the above mentioned address and I have been married for the last twelve years to Dr.Akhila Bhat who lives with me. I am concerned that my wife has been overworking and seems to be going through a lot of stress at work. I have noticed a lot of changes in her behaviour. She has been acting strangely, not sleeping, neglecting her own health, home and our child. She has become unpredictable and threatens to harm herself, me or our son. I'm worried because of this. She has also been threatening to make false allegations against me and complain falsely that I have been cruel to her and abuse her physically. I am concerned for her health and safety and also of mine and our son. I deeply love her and am trying my best to help her.

I would request your intervention and help if I ask for it if she threatens to cause any harm to herself or others in the household."

18. The applicant has filed this application on 14.9.2009 seeking for interim custody of the child. It is also seen that on the basis of the complaint given by the respondent, the applicant obtained anticipatory bail on 3.11.2009, which is evident from Sl.No.35 of the list of dates and events.

19. It is also pertinent to note that when this application was posted for enquiry on 23.12.2009, the child was produced before Court and while passing orders, S.Rajeswaran,J, made the following observations:

"	...... On the direction issued by me, minor son Master Vishvas Mady (aged 10 years) was also brought. I had intimate and personal talk with him, the minor son individually in my chamber. I find that Master Vishvas Mady is articulate, understanding and he is able to express himself freely. From the discussion and the personal talk I had with the Master Vishvas Mady, I am of the opinion that the interim custody of the minor boy sought for by the petitioner/father cannot be granted now. ..."

20. Further, for celebrating the birth day of the minor child, when this application was taken up for hearing on 28.1.2010, V.Ramasubramanian,J, has passed orders, permitting the applicant to celebrate the birth day of the child in the Child Care Centre, Family Court, between 10.30 a.m. and 12.30 p.m. on 29.1.2010.

21. On 20.4.2010, when this application was taken up for disposal, at 2.15 p.m., the child was produced before Court and I made enquiry and the child expressed his unwillingness to go with his father. Furthermore, the child made allegations against his father. Now, the child is 11 years old and he is studying in VIth Standard. It is true that the child is with the single parent, i.e. one of the parents, and the child can be tutored by that parent and the child will reproduce the same as a parrot. When this Court directed the minor child to interact with his father, neither of them interacted with each other, even though they were sitting in the same Bench in the Court Hall.

22. Furthermore, the respondent-mother of the child, went to the extent of making serious allegations against her husband, the applicant herein, stating that the child was subjected to sexual abuse by the applicant-father, and so, the child is afraid of his father and hence, he is not willing to go with his father.

23. As admitted by both parties, the case has been registered on the basis of the complaint given by the respondent against the applicant, on 8.10.2009, for the offences under Sections 498-A, 377 and 506 (Part-II) IPC, and the main O.P. has been filed on 14.9.2009, seeking for the custody of the child. In the criminal case, the minor child was examined as a witness by the investigating agency. The case has been registered under Section 377 IPC along with Section 498-a and 506 (Part-II) IPC, alleging that the husband sexually molested and abused his son, who was aged about 7 years. In such circumstances, since serious allegations have been made against the applicant, if the minor child is handed over to the applicant-father, it will cause hindrance to the investigation and trial of the criminal case filed against the applicant, because, the child is alleged to be a victim and also alleged to be a witness in the criminal case filed on the basis of the complaint given by the respondent before the Commissioner of Police, Central Chennai, Egmore, Chennai-8, in the Police Department file in Rc.No.6465-A/cop/Visitors and RC.No.495/Dc/emp/COP-Visitors/09.

24. Learned Senior Counsel for the applicant would submit that one of the applicant's sister is now at Mangalore for maintaining and taking care of the minor child and she is ready to come over to Chennai from Mangalore for taking care of the child. Admittedly, in Chennai, there is no female member in the family of the applicant to take care of the minor child, if the minor child is given interim custody to the applicant. Furthermore, the child is now with the respondent-mother and whether the allegations made against both the spouses are true or false, have to be decided only after letting in oral and documentary evidence. Considering the serious allegations made against the applicant, it is unsafe and premature to give the interim custody of the child to the applicant-father.

25. As already stated in the earlier paragraphs, even though the child was produced before Court, neither the child nor the applicant-father interacted with each other. In such circumstances, if the child is given interim custody to the applicant-father, it will affect the mental faculty and the psyche of the child, as the child is able to express his views freely to the Court when the case was heard on 23.12.2009 and on 20.4.2010.

26. The first thing that calls for notice is the fact that, in an application under Section 25 of the Guardians and Wards Act, the sole criterion is the minor's welfare. It is only if the Court is of opinion that "it will be for the welfare of the ward to return to the custody of his guardian" that it can pass an order for such return. The rights of the guardian should not weigh at all though, since in all legal systems, rules relating to guardianship are framed with a view to protect the interests of minors, it may be presumed that, if the law gives the guardianship to a particular person, it is in the interests of the minor that person should have custody of his person.

27. The father's right is not absolute. It is circumscribed by the considerations of welfare of the minor. If the minor's welfare requires that custody should not be given to the father, he cannot get it merely because he happens to be the father.

28. Under Hindu law, the father would be the natural guardian, but in considering the question as to whether the father should have the custody of the child or the mother when the two are separated, the Court has to consider primarily the interests of the minor and in arriving at a decision, the Court has to take into consideration all the circumstances of the case.

29. In the decision of the Supreme Court reported in AIR 1982 SC 792 (Veena Kapoor Vs. Varinder Kumar), it was held by the Apex Court as follows:

"It is well-settled that in matters concerning, the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party."

30. One of the paramount and germane considerations would be to take into account the wishes of the child. Since the minor son is aged about 11 years, and as he has expressed his intelligent preference in the matter of guardianship, his wishes should be respected. Preference of the minor, if he is sufficiently old, should be given due weightage. It is also the duty of the Court to examine whether the wish expressed by minor is free and frank desire, where a child above five years in custody of mother throughout was found to be well-nourished and playful, the application of the father for the custody of the child is to be considered more cautiously in the background of his conduct.

31. While considering the averments in the application, it shows that the minor child was not close with the father, even though the applicant-husband and the respondent-wife were living in the same roof and the minor child was with the respondent-mother till she left the matrimonial home along with the minor child on 9.9.2009. Now, the child is with the respondent-mother. The custody in which the minor had been prior to the controversy, should not ordinarily be disturbed, if there are materials to show that the minor has reconciled to that custody and really disliked the change. 32. For the foregoing reasonings, I am of the view that the applicant-father of the child, is not entitled to get the interim custody of the child. The application is devoid of merits and the same is dismissed.

cs
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
Hi, you have to file a petition under Guardians and ward act  for seeking relief of child custody.

2. In the same petition you have to file application for interim relief also.

3. It is better you can lodge a complaint before the children protection officer or lodge a police complaint against your husband so that it will bring pressure some pressure on your husband.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
File a complaint before police station for getting an immediate relief from the detention. On the same time  file a petition for custody of child before family court.The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute

The apex court in view that the father’s suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mother’s unsuitability since Thalbir is below five years of age. In these considerations the father’s character and background will also become relevant but only once the Court strongly and firmly doubts the mother’s suitability; only then and even then would the comparative characteristic of the parents come into play…The focal point for consideration in such cases is welfare of the child. 
Ajay N S
Advocate, Ernakulam
1914 Answers
19 Consultations
5.0 on 5.0
1) court will consider daughter continuous absence from school while passing orders . 

2) it would show that father is not interested in welfare of the child . 

3) In the decision of the Supreme Court reported in AIR 1982 SC 792 (Veena Kapoor Vs. Varinder Kumar), it was held by the Apex Court as follows:

"It is well-settled that in matters concerning, the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party."
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
1.File a Child Custody case before the local Court,

2. Also file an application praying for an interim order for visitation when your daughter will be sent to the school everyday if she is not sick. This will serve all the basic purposes sought by you,

3. Engage a local lawyer having expertise in this filled,

4. Your claims are justified as per law for which you do not need any citation at this stage.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1. Your lawyer can point out that in order to harass you, your husband is spoiling the future of your daughter by not sending her to school  for which her custody should be given to you,

2. Visitation right to father or mother has been granted by he Court and such petitions are regular matters in all the Courts all over India.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
Citation: 2008 AIR 471  2007(11  )SCR854   2007(12  )SCALE758

 
SUPREME COURT OF INDIA
 
 

 

 

Judgement

 

CASE NO.:
Appeal (civil)  5088-5097 of 2007

PETITIONER:
Mohan Kumar Rayana

RESPONDENT:
Komal Mohan Rayana

DATE OF JUDGMENT: 01/11/2007

BENCH:
C.K.THAKKER & ALTAMAS KABIR

JUDGMENT:
J U D G M E N T 

CIVIL APPEAL NOS.5088-5097 OF 2007
(Arising out of S.L.P.( C) Nos.15167-15176 of 2007)


   Altamas Kabir, J.


1.	  Leave granted.


2	 Since both the parties to the special leave petitions 
are before us, Notice of the Appeals is waived on behalf 
of the respondent, Komal Mohan Rayana.
3	  The appeals arise out of circumstances wherein owing 
to disputes and differences between a married couple, the 
child born of the wedlock has become the object of a 
tussle for custody between the two parents.
4. The subject matter of these appeals are four orders 
passed by the Bombay High Court on 12th July 2007, 19th 
July 2007, 27th July 2007 and 6th August 2007 in two 
appeals from a petition No.D-65/2005 before the Family 
Court.  In order to appreciate the circumstances in which 
these orders came to be passed, it will be necessary to 
state a few facts leading to the commencement of the 
proceedings before the Family Court. 

5.	Admittedly, the appellant herein, who is the husband 
of the respondent, married the respondent on 2nd March 
2002. A daughter was born to them and she was named 
Anisha. Initially there were no disputes as such between 
the parties but after the daughters birth, the atmosphere 
in the marital home began to change.  We shall not go into 
the causes as alleged by the respondent since such 
allegations are not relevant for our purpose, but we can 
only observe that one of the reasons given by the 
respondent for the changed circumstances was the change in 
behaviour of the appellant towards her, on account of 
addiction to alcohol in the company of his friends. 

6.	In any event, there appears to have been some marital 
discord, which resulted in the respondent leaving the 
matrimonial house in July 2004 with her minor daughter and 
seeking shelter with her parents at Bandra.  According to 
the respondent, during the said period she continued to 
send Anisha to the Kinder Campus School at Chembur, the 
area where the appellant was residing and permitted him on 
occasions to keep back Anisha at his residence. The 
respondent has alleged that in October 2005, taking 
advantage of such a situation, the appellant kept Anisha 
back with him and did not return her to the respondents 
custody. This compelled the respondent to meet her 
daughter in the school campus, but since this arrangement 
did not also work out, in the last week of November 2005, 
she approached the Chembur police and with their help got 
back the custody of her daughter.  A series of allegations 
were thereafter made that on 30th November, 2005 the 
appellant, with the help of some of his associates, 
forcibly removed Anisha from the respondents custody and 
made her completely inaccessible to the respondent. It is 
in such compelling circumstances that she moved the Family 
Court seeking custody of her minor daughter under Section 
6 of the Hindu Minority and Guardianship Act, 1956 read 
with Ss.7 and 25 of the Guardians & Wards Act, 1890.
7.	The appellant herein also filed a Custody Petition, 
being D-66 of 2005, and both the applications were taken 
up for hearing together by the learned Family Court. By 
its judgment dated 2nd February 2007 the Family Court 
dismissed the appellants application for custody and 
allowed the application filed by the respdondent by 
passing the following order :
ORDER
The Respondent/Mohankumar Rayana is directed 
to hand over custody of the minor daughter 
Anisha to the petitioner/mother Komal Rayana 
immediately after completion of her final 
terms of the current academic session 2006-
2007.

The Respondent/father shall take all the 
steps to provide all facilities to the minor 
daughter to enjoy her extra curricular 
activities and studies.

After the child Anisha goes to the custody 
of the mother as ordered above, the 
Respondent/father would be at liberty and 
privilege to avail her access every 
alternate weekends, meet her at school at 
any time and share 50% of her school 
vacations, as per mutual arrangement with 
the petitioner/mother.

The petitioner/mother should in consultation 
with the Respondent/father decide the 
question of her further academic education 
and she should not move the child out of the 
jurisdiction of the Court without its prior 
permission and of course after due 
intimation to the Respondent/father.

The father/respondent shall meet all the 
expenses for the education, food and clothes 
etc. of the minor daughter Anisha and the 
Petitioner/mother of her own accord may 
contribute to the same for the child and she 
should not be prohibited by the 
respondent/father from giving the child 
Anisha anything for her own comfort and 
pleasant living.  This arrangement for 
custody is made on the basis of the prior 
consideration for the welfare of the minor 
Anisha and in the event of change of 
circumstances  either  of the parents shall 
be at liberty and privilege to approach this 
Court for fresh direction on the basis of 
changed circumstances.

The custody petition D-65/05 moved by the 
Respondent/father Mohan Kumar Rayana stands 
dismissed  with visitation and access rights 
as ordered above.


8. Aggrieved by the said Judgment and order of the Family 
Court, the appellant filed Family Court Appeal No. 29/2007 
before the Bombay High Court on 23.2.2007 and the same was 
admitted on 7th March, 2007 and was said to have been per-
emptorily fixed for final hearing on 26th March, 2007. On 
26th March, 2007 the respondent also filed an appeal, 
being Family Court Appeal No.61/2007, challenging the 
operation of the judgment of the Family Court dated 
2.2.2007 granting access to the appellant  to meet Anisha. 
The said appeal was also admitted on 3rd May, 2007. On the 
same day, the directions contained in the order of the 
Family Court dated 2.2.07 regarding access to the 
appellant to meet Anisha, were modified by the High Court 
by directing that the minor child would be available to 
the appellant as and when he was physically present in 
Bombay at his house.  It was also stipulated that whenever 
the appellant was not available in Bombay the child should 
remain with the respondent.  It was specifically mentioned 
that the child should not be removed by the appellant out 
of Bombay for any reason whatsoever, except in the 
circumstances mentioned in the order.

9.	A Special Leave Petition was filed by the appellant 
against the order of the High Court dated 3.5.07 and the 
same was disposed of on 18.6.07 with a direction upon the 
High Court to hear the Family Court appeal expeditiously.

10.	Certain circumstances intervened which prompted the 
Division Bench of the Bombay High Court to modify its 
order dated 3.5.07 on 12.7.07 by reducing the access 
granted to the appellant and limited such access only to 
the day time on the ensuing Saturday and Sunday.  The said 
order passed in the two above-mentioned appeals is one of 
the orders forming the subject matter of the appeals 
before us.

11.	Subsequently, after interviewing the parties and the 
minor child, the High Court passed a further order on 
19.7.07 directing the appellant and the respondent to 
visit a psychiatrist with the child and to obtain a report 
from him.  The access granted to the appellant on 
Saturdays and Sundays from 9 A.M. to 9 P.M. was continued. 
The said order passed in application No.81/2007 filed by 
the respondent herein in Family Court Appeal No.61/2007, 
is one of the other orders which form the subject matter 
of the present appeals before us.

12.	A third order was passed by the Bombay High Court on 
27.7.07 directing the appellant and the respondent to seek 
appointment with a psychiatrist within a week, and he was 
also directed to submit his report within 2 weeks after 
the parties were examined.  The interim arrangement made 
earlier was directed to continue. The said order is the 
third order which is impugned in the present appeals. The 
fourth order impugned in these appeals was passed on 
6.8.07 in the pending Civil Application No.81/2007, 
whereby, in view of the intervening circumstances, the 
High Court passed the following order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.61 OF 2007
ALONGWITH
CIVIL APPLICATION NO.81 OF 2007
ALONGWITH
FAMILY COURT APPEAL NO.29 OF 2007

Mr. R.T. Lalwani, Advocate for the 
applicant/wife
Mr. Kevic Settalwad Advocate i/b D.H. Law 
& Associates for Respondent/husband

CORAM :  J.N. PATEL AND A.S. SAYED, JJ
DATE  :	  AUGUST 6, 2007
P.C. (Per J.N. Patel,J):

	Heard.  We find from the conduct of 
the parties that the parties are 
repeatedly moving this Court in the matter 
on one pretext or the other. It is highly 
impossible for the Court to monitor each 
and everything.  This being matrimonial 
matter relating to access of the child, 
the Court has issued directions from time 
to time and it is expected that both the 
parties shall comply with the directions 
of this Court and facilitate each other 
and cooperate with each other in the 
matter. But it appears that the parties 
are trying to interpret the order in the 
manner they want, without being concerned 
about the welfare of the child, which is 
of paramount importance.  This Court has 
suggested to the parties to go for 
counselling and already a psychiatric of 
J.J. Hospital is appointed for the same.  
Recent development is represented by the 
counsel for the parties shows that on the 
last date of access there was some quarrel 
between the parties, which lead to 
hospitalisation of the wife, for injuries 
suffered by her and she is presently 
admitted in Lilawati Hospital and likely 
to be discharged today or tomorrow.

2.	In our considered opinion the 
respondent/wife deserves an opportunity to 
place her affidavit on record.

3.	In view of the recent development as 
brought to our notice, we are left with no 
option, but hold all our interim 
orders/relief to grant access to father, 
in abeyance till this Court  receives 
report of the psychiatrist. We make it 
clear that the parties, if fail to 
cooperate with the Court in resolving the 
issue, this Court would remove the matter 
from its board.  It is not expected from 
the parties to resolve their domestic 
quarrel in the court and ask the Court to 
adjudicate each and every issue, whether 
minor or major, relevant or irrelevant.  
We hope that the parties would maintain 
some discipline in observing the orders of 
the Court and cooperate.

4. Parties are at liberty to mention the 
matter only after they comply with the 
orders of this Court and report of the 
psychiatrist is received. Thereafter this 
Court proposes to pass the further orders. 
The matter stands adjourned for 4 weeks. 
We make it clear that on the mean time we 
would not entertain any application for 
interim relief, or for permitting the 
parties to meet the child, or to take 
matter on board, which has led this Court 
to hold all orders passed earlier in 
abeyance.

(A.A.SAYED,J)			(J.N. PATEL,J)
TRUE COPY


13. By the aforesaid order all access to the appellant was 
kept in abeyance till the Court received the report of the 
psychiatrist. The main grievance of the appellant is that 
by the order of 6.8.07 he was completely denied any access 
to the minor child. He was also aggrieved by the reduction 
of access time by the other orders as well. 

14.	 Since these appeals have been preferred against the 
interim orders passed by the Bombay High Court in the two 
pending Family Court Appeals, learned counsel for the 
appellant, submitted that in these appeals the only 
grievance of the appellant was with regard to denial of 
complete access to his child.  He prayed that the 
visitation rights which had been granted by the Family 
Court be restored during the pendency of the two appeals 
in the Bombay High Court.

15.	Since we are only called upon to decide the said 
issue, we are not required to go into any other question 
relating to the appeals pending before the Bombay High 
Court. We have met the appellant, the respondent and also 
the minor child, Anisha, separately, in chamber, to 
ascertain what each had to say regarding the making of 
interim arrangements to allow the appellant to have access 
to Anisha.

16.	After having looked through the materials on record 
and after considering the views of the parties and the 
minor girl, we are of the view that the appellant should 
not be denied complete access to his minor child, even if 
there has been a default in complying with the directions 
of the High Court and that pending the disposal of the 
appeals he should be allowed to have access to his minor 
child, at least to some extent.
17.	We, accordingly, dispose of these appeals with the 
following directions :-

i)	Since the welfare of a minor child is involved, 
the High Court is requested to try and dispose 
of the pending appeals as expeditiously as 
possible, but preferably within three months 
from the date of communication of this order;
ii)	The appellant/father of the minor, will be 
entitled to have access to Anisha on weekends on 
Saturdays and Sundays and will be entitled, if 
the child is willing, to keep her with him on 
Saturday night.  For the said purpose, the 
appellant shall receive the child from the 
respondent at 10.00 a.m. on Saturday from her 
residence at Bandra or from a mutually agreed 
upon venue and shall return the child to the 
respondent on Sunday by 2.00 p.m. In the event 
Anisha is unwilling to stay with the appellant 
overnight, the appellant will then make her over 
to the respondent on Saturday itself by 9.00 
p.m.; in that case, the appellant will be 
entitled to take Anisha out on Sunday also 
between 9.00 a.m. to 5.00 p.m.;
iii)	Both the appellant as well as the respondent 
must co-operate with each other in making the 
aforesaid arrangements work.  The respondent 
shall not prevent the appellant from having 
access to Anisha in the manner indicated above. 
Likewise, once Anisha is handed over to the 
appellant he too must honour the aforesaid 
arrangements and not keep Anisha with him beyond 
the time stipulated. In the event of either of 
the parties violating the aforesaid arrangement, 
the other party would be at liberty to pray for 
appropriate orders before the Bombay High Court 
in the pending appeals;
iv)	The aforesaid arrangement is being made so that 
the appellant can have access to his minor 
daughter and also to ensure that the childs 
education does not suffer in any way during the 
week.


18.	The appeals are, accordingly, disposed of with the 
aforesaid modifications of the interim orders passed by 
the High Court and save as aforesaid, all the other 
interim directions shall continue to remain operative.

19.	Since, in terms of our earlier directions, the 
expenses of the respondent and Anisha for coming from 
Bombay to Delhi and other litigation expenses is said to 
have been deposited by the appellant with the Registry of 
this Court, the respondent shall be entitled to withdraw 
the same. There shall be no further order as to costs in 
these appeals.
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
Dear Querist
my opinion on your queries are as under:

1) Court should order my husband to send our daughter to school daily.
Opinion: Immediately file a guardianship petition before Session court/High Court and claim custody of your child along with an interim application for interim custody.
Apart from the above immediately file a domestic violence case and claim child custody, under section 21 of protection of women from domestic violence act-2005 along with an application of interim relief u/s 23 of Act, the magistrate have power to pass an ex-parte order on your complaint regarding the child custody.

2) since my current residence (relative house, where I am staying for last 7 days) is just 1.5 KM from my husband's home, Can I get visiting power to visit my daughter for 4 hours daily, so that I can take care of her homework & all other things. But I want this under police protection, as my husband is too violent. 
Opinion: yes, you may get the visitation right during the court proceedings until the disposal of the case, it may also possible that the court may direct your husband to hand over the custody to you till the final disposal of the case.

3) when ever my daughter is medically unfit for going school, My husband should inform me & under police protection I shall be allowed to take her to child doctor.
Opinion: If you have dare to do that then this is the best and fast solution, go to your husband's place and snatch your daughter from him and return to your home and file a civil suit for injunction and get restrain order against him to meet/visit the child without permission of the court.

Feel free to call
There are various cases in which the court handed over the custody to mother from father specially if the child is girl.
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
Why is your child under the custody of your husband?
Is it after an order by a competent court that he got the custody of your child?
Did you not appeal against the curt order granting custody of your child to your husband?
If the child was forcibly taken away by your husband and has been in his custody, you may apply for child custody and in that can seek visitation rights as an interim relief.
There are various settled laws giving custody as well visitation rights.  For visitation rights you may submit your own time table to meet your child, let the court decide after hearing both the sides. 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1. In some parts of the country where the judge-population ratio is dismal and the pendency of cases is humongous the courts take long to decide child custody cases whereas in other parts where is is not so the disposal is made without inordinate delay. Be that as it may, if you wish to get the custody of your child then you are required to file for child custody in the court. The paramount consideration for the court is the welfare of child. 

2. High Court at Nainital cannot be moved directly unless you have a case that your daughter was uprooted from you in violation of the law. 

3. The least you can get is visitation under police protection. 

4. Hurry up as in child custody cases the delay in filing the case proves, more often than not, to be fatal.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
1) you have to check the guidelines prevalent in your state for inter school transfer 

2) you can send letter to principal opposing application for transfer of your daughter from school and request it not to issue any transfer certificate as your petition for custody of daughter is pending in the HC 

3) the school will not issue any transfer certificate if your petition s pending in court for custody of your daughter 
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
There is no law governing that the mother's signature or consent is essential to transfer the child from one school to another. The father as a parent can sign himself, that will be sufficient. 
However, you can give a letter to the principal/HM of the school to stop the process of transfer for the reasons whatever you may state.  Being the child's mother and also the staff of the sema school the principal may consider your request.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
This is not true. The parent who has the custody of the child can transfer him to another school.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
You have to approach court or police station seeking immediate custody of your child and also obtain an injunction from civil court against your husband from transferring the child from this school mentioning that the child's education will hamper if she is frequently disturbed and also if it is transferred she will not be taken care of properly by others than the mother who herself is a teacher that too in the same school.  
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1. There is no rule that mother's signature is necessary for changing the school of a child,

2. Ask your lawyer to make a mention before the Court for early hearing of your application and hope that you have already prayed before the Court for a direction upon your husband to send your daughter to her present school till the custody petition is disposed of,

3. If you have not added the above prayer, let your Advocate pray for it during hearing of the petition.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0

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T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
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229 Consultations
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