Chhattisgarh High Court: In an appeal filed by appellant-father under Section 19(1) of the Family Courts Act, 1984 read with Section 47 of the Guardians and Wards Act, 1890 (‘the Act’), the Division Bench of Goutam Bhandari** and Radhakishan Agrawal*, JJ., opined that in the present case, no doubt that both the spouses were capable to look after the child, but it appeared that respondent-mother had aggressive nature. Therefore, considering the child’s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, moral and ethical values, the Court opined that it would be proper and appropriate if father held the custody of the daughter.
The Court further ordered to facilitate the grant of visitation and contact right to mother. The Court stated that mother would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday and Sunday and five-ten minutes on other days. Further, to facilitate video conferencing, both mother and father should procure smart phones, and every month preferably on second Saturday, Sunday and on a festival day, the father should allow the daughter to visit her mother.
Background
On 24-05-2014, the parties got married as per Hindu rites and rituals and from the wedlock, a daughter was born on 21-03-2015. It was alleged that mother did not take care of the daughter and was always careless towards her since birth. Further, after consultation with psychiatrist, father came to know that mother was suffering from schizophrenia disease and thereafter, took her to a hospital, where a doctor conducted her treatment for a long time. The daughter was living under father’s protection since the age of one year, as mother and her parents had left the daughter with father for proper care.
Subsequently, husband filed a divorce petition against wife and meanwhile, wife (‘mother’) filed an application under Section 97 of the Criminal Procedure Code, 1973 and got a warrant issued against husband (‘father’) seeking presence of her daughter. Father alleged that mother subjected him mental harassment and created nuisance and quarrelled with him over petty matters. Further, mother always wanted to take her daughter back from father’s custody and on being fed up with the persistent ill-treatment, he filed a complaint before the police station. Father submitted that under mother’s guardianship there was likely to have an adverse effect on both physical and mental development of the daughter, and as he was working as an accountant, he was fully competent to look after his daughter. Therefore, being a natural guardian, custody of the daughter should be given to him.
The Family Court after evaluating evidence adduced by both the parties, dismissed the application filed by the father under Section 25 of the Act, and after taking into consideration the paramount welfare of the daughter, gave her custody to mother. Thus, father filed the present appeal.
Analysis, Law, and Decision
The Court relied on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42, Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413 and opined that in determining the question regarding the custody of a minor child, the paramount consideration was the child’s welfare and not rights of the parents under a statute for the time being in force. Therefore, when the Court was confronted with the conflicting demands made by parents, and both demands were justified, the Courts should not emphasise on what the parties said, rather it had to exercise a jurisdiction aimed at the minor’s welfare. The Court opined that along with the physical well-being of the child, moral and ethical welfare of the child must also weigh with the Court. Therefore, the provisions of the special statutes which governed the rights of the parents or guardians might be taken into consideration and nothing which stood in the way of the Court to exercise its parents patriae jurisdiction in such cases.
Further, the Court observed that on 05-02-2024, when the daughter was asked her wish regarding with whom she wanted to live, she was very clear and categorically expressed her desire to stay with her father because she got plenty of love and affection from her father and her grandparents. The Court opined that in the present case, no doubt that both the spouses were capable to look after the child, but it appeared that mother had aggressive nature. Therefore, considering the child’s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, moral and ethical values, the Court opined that it would be proper and appropriate if father held the custody of the daughter.
Justice Goutam Bhaduri’s observation
While concurring with Justice Radhakishan Agrawal, Justice Goutam Bhaduri opined that the daughter had made allegations that her mother was a careless person and used to beat her. Further, she also stated that she was being tutored abusive words and her mother also used to beat her Nani. Whereas, with respect to father, the daughter stated that she was kept very well, and her grandparents also took care of her and loved her. She also stated that whatever she had stated should not be disclosed to her mother otherwise she would be beaten, and she did not want to stay with her mother and wanted to stay with her father.
Justice Goutam Bhaduri opined that statement potentially demonstrated that eventually the child had to bear the burnt and continuation of daughter’s custody with mother would not be proper. It would deprive the daughter of her mental development in the environment so placed, therefore, the daughter’s custody should be handed over to father. Justice Goutam Bhaduri further opined that since the child had expressed her fear that in case her mind was disclosed to mother, she would be beaten, her fear might loom large in her mind. Thus, the copy of the present judgment was sent to the Secretary, District Legal Services Authority, who would ensure the child’s safety for her proper protection.
Conclusion
Thus, following the principles laid down in Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67 and Ritika Sharan v. Sujoy Ghosh 2020 SCC OnLine SC 878, the Court ordered to facilitate the grant of visitation and contact right to mother. The Court stated that mother would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday and Sunday and five-ten minutes on other days. Further, to facilitate video conferencing, both mother and father should procure smart phones, and every month preferably on second Saturday, second Sunday and on a festival day, the father should allow the daughter to visit her mother.
The Court further observed that after the case was reserved for judgment, an application was filed by mother for appropriate action regarding tampering the live streaming of the Court proceedings. The Court took note of the social media messages annexed with the application and opined that ‘judge bashing’ and using derogatory and contemptuous language against the judges and lawyers had become a favourite pastime of some people. These statements tend to scandalize and lower the Courts’ authority and could not be permitted because, for functioning of democracy, an independent judiciary to dispense justice without fear and favour was paramount. The Court opined that “while fair and temperate criticism of the Court even if strong, may not be actionable, but attributing improper motives or tending to bring Judges or Courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must be and will be taken.”
The Court opined that the nature of comments made did not aid to improve the justice delivery system, and indirectly extended threat to lawyers and tarnished the Court’s image. It was easy to pass a comment for a mint fresh attention on the fence without realizing the facts and to have a misplaced sense of collective pride. Therefore, considering the entire facts situation, the Court referred the matter to the Registrar General of this Court, who would in coordination with the Registrar (Computerization)/CPC, take appropriate measures regarding scripts with flaws and if needed contempt notices should be issued to the persons who posted the proceedings of the Court in the social media and made the derogatory comments against the pleading advocates, court and the judges, after identifying them with the help of Cyber Cell Team of the State of Chhattisgarh. Thereafter, the Court directed Registrar (Judicial) to register appropriate proceedings separately and place it before this Court.
[A v. B, 2024 SCC OnLine Chh 2464, decided on 02-04-2024]
*Judgment authored by- Justice Radhakishan Agrawal
**Concurring judgment authored by- Justice Goutam Bhaduri
Advocates who appeared in this case:
For the Appellant: N.K. Shukla, Senior Advocate with Saurabh Dangi, Palak Dwivedi and Sajal Kumar, Advocates;
For the Respondent: Malay Shrivastava, Advocate.
Buy Code of Criminal Procedure, 1973 HERE
