Rajasthan High Court: In a petition filed by the petitioner-father, a custodian parent against the respondent-mother, a non-custodian parent, Arun Monga J.*, opined that for the want of professional expertise, and also, in view of the current adamance to the contrary, neither this Court, nor the Family Court was in the position of passing any fruitful and implementable order forcing the children to meet their mother. Thus, the Court set aside the impugned order dated 30-05-2023 and directed the father that to protect the children’s emotional and psychological interests, he should take his sons to a psychologist on Saturday of every weekend for counselling for one hour about the role and importance of both the parents in their life. The Court addressed the certain privacy concerns that arose out of the matter in this kind and stated that the Registry of this Court as well as the Family Courts in the State of Rajasthan to be cautious in future to ensure that they must respect the privacy of the parties in matrimonial disputes by ensuring that their identities were not disclosed and the name of the parties were shown as XX v. YY or otherwise, the same were masked. The Registry was directed to issue an appropriate circular to the Family Courts to strictly carry out the compliance thereof.
Background
In an instant case, the present petition arose out of an interim application dated 25-10-2021, which was filed by the mother before the Family Court seeking visitation rights to meet her two minor sons born from the wedlock.
During the pendency of the interim application, the Family Court vide order dated 30-05-2023, summoned the children to the court to take further decisions regarding the matter. However, before the order dated 30-05-2023, could be implemented, the father filed the present petition, assailing the same and thus, the order dated 30-05-2023 was stayed vide interim order dated 18-07-2023.
Analysis, Law, and Decision
The Court opined that it would decide the instant petition which arose out of the mother’s application under Section 25 of the Guardians and Wards Act, 1890 seeking her visitation rights, which led to the passing of the impugned order dated 30-05-2023.
The Court noted that the mother had to move out of the matrimonial house under compelling circumstances. The father’s stand was that she left on her own and left the children behind, but the mother stated that she was not allowed to take her children with her. The Court opined that the repeated failures of the mediation by the parties suggested the deep-seated nature of the conflicts between the parents, resolution of which was likely to take quite some time. Considering the formative years and tender age of the children, the Court opined that this court could not be oblivious to the sensitivity of the matter and well-being of the minor child.
The Court opined that the role of both the parents was crucial in the child’s upbringing which highlighted the social, psychological, and health benefits derived from active involvement of both parents. The stability provided by relationship with both parents contributed to the child’s well-being, which offers opportunities for success. In a case of estranged parents, if a single happy home with both parents could not be achieved, the endeavour had to be to provide a child with the benefit of two happy homes. Furthermore, the Court should act as facilitators to bridge the gap between the children and their estranged parents and it must advocate or direct ways to establish a bond between the estranged parent and the child, which included effective unsupervised visitation rights.
The Court noted that during the chamber visit in this Court, the sons flatly refused to acknowledge that they owe their life to their mother and opined that to create a life and give birth to the child was the god gifted power that lied with the mother, but in the present case, the mother’s own sons were not interested to meet her, let alone live together.
Further, the Court noted that when the sons were asked their opinion that regarding spending some time with their mother, both the minor sons showed their disinclination with a firm ‘no’. The Court opined that “the sons are clearly oblivious to the reality that becoming a mother is undoubtedly the hardest thing to do, given the pain and labour it takes to produce a child. Emotionally, albeit it is greatest thing to happen to a woman, to create life from her own flesh and blood.”
Given the high hostility between the parents, which seemed to have direct impact on the children’s perception about and their present reluctance to interact with the mother, the Court opined that firstly, an attempt had to be made to try and navigate the sons gradually and methodically to educate them about the role and importance of both the parents in their life, natural love, affection and concern for them and their welfare. The Court opined that one way to do that would be to involve a psychologist. The emotional complexity of a situation warranted the need for professional intervention to understand and address the children’s feelings and to create a structured and monitored environment for them. After this process was completed, then only the pending application of the mother seeking visitation rights ought to be decided by the Family Court.
The Court opined that for the want of professional expertise, and also, in view of the current adamance to the contrary, neither this Court, not the Family Court was in the position of passing any fruitful and implementable order forcing the children to meet their mother. Thus, the Court set aside the impugned order dated 30-05-2023 and directed the father that to protect the children’s emotional and psychological interests, he should take his sons to a psychologist on Saturday of every weekend for one hour counselling about the role and importance of both the parents in their life, natural love, affection and concern for them and their welfare. Moreover, counselling should also be about analysing the reasons for the children’s reluctance to meet or interact with their mother, and also, find out if the children had any misconceptions and pre-conceived notions against their mother. Further, the counsellor should render his expert professional guidance to clear any such misconceptions and pre-conceived notions of the children against their mother.
The Court directed the father should allow the psychologist to interact with them without his presence and in case, the psychologist wishes or required the mother’s presence, the father should not directly or indirectly cause any hinderance. The Court stated that the psychologist should submit his report to the Family Court after six sittings and continue holding the sittings during pendency of the trial. The professional fee of the psychologist should be paid by the father and the psychologist should be explained of the basic facts to understand and perform his brief in better perspective.
The Court discharged it duty as parents patriae and requested Dr. Madhabanada Kar, Director, AIIMS, Jodhpur to depute a suitable psychologist from his institute, to start the counselling session with effect from 16-12-2023, at a place and time that would be conveyed by the father. After the completion of the sixth session, a report should be submitted by a psychologist to the Family Court.
The Court addressed the certain privacy concerns that arose out of the matter in this kind and stated that the Registry of this Court as well as the Family Courts in the State of Rajasthan to be cautious in future to ensure that they must respect the privacy of the parties in matrimonial disputes by ensuring that their identities were not disclosed and the name of the parties were shown as XX v. YY or otherwise, the same were masked. The Registry was directed to issue an appropriate circular to the Family Courts to strictly carry out the compliance thereof.
[XX v. YY, S.B. 2023 SCC OnLine Raj 4173, decided on 13-12-2023]
*Judgement authored by- Justice Arun Monga
Advocates who appeared in this case :
For the Petitioner: Shobha Gupta, Advocate;
For the Respondent: Salman Agha, Advocate
