Delhi High Court: In an appeal filed by the appellant (father) to seek a direction for setting aside the impugned order dated 09-11-2023 passed by the Family Court, Dwarka, New Delhi as well as the interim custody of his child, a Division Bench of Rajiv Shakdher and Amit Bansal *, JJ. did not find any ground to interfere with the impugned order and refused to grant interim custody of the child to the father.
Background
The parties in the present matter got married as per Hindu rites and ceremonies after which a male child, Master Shrestha Sharma, was born to them and the respondent (mother) had also been taking care of a female child born out of her previous marriage.
Marital disputes arose between both parties and the mother left her matrimonial house along with both the children on 15-09-2021. She approached the police and alleged that her husband had attempted to kill her and misbehaved with her daughter for which a complaint was filed on 19-09-2021.
Thereafter, the mother filed a petition seeking the dissolution of her marriage before the Family Court. In the divorce proceedings, the father filed an application to seek visitation rights for his son. Vide order dated 10-01-2022, he was granted virtual visitation rights twice a week from 6 pm to 7 pm.
The father stated that the mother had failed to comply with the aforesaid order. Therefore, he filed two contempt applications in the divorce proceedings which were pending adjudication. Subsequently, the father filed a petition under Section 25 of the Guardian and Wards Act, 1980 before the Family Court.
Along with the aforesaid petition, the father also filed an application under Section 12 of the Guardian and Wards Act, 1980 seeking interim/temporary custody of the child. The Family Court, vide order dated 02-01-2023, allowed the father to meet the child at Venkateshwar Hospital, where the child was admitted since he was suffering from Swine Flu. However, the father stated that the interaction with the child could not take place as the mother created hindrances.
The Family Court, vide Order dated 31-01-2023 for a subsequent application filed by the father, allowed temporary custody of the child for four hours on 08-02-2023. Further, with the consent of the parties, the father was allowed to meet the child on the first and third Saturdays, every month in the Children’s room in the Dwarka Court for one hour. The mother appealed against the aforesaid order which was dismissed by the Division Bench vide Order dated 09-08-2023 but it was observed that the meetings between the father and the child would be held in the presence of a counsellor.
The child’s paternal grandmother filed an application to seek interim custody of the child which came to be dismissed vide Order dated 06-09-2023 and held that since she was not a party to the guardianship petition, it would not be in the welfare of the child to send him to the father’s house where the child’s grandparents were residing.
Thereafter, the father filed another application for the interim custody of the child during Dussehra which was allowed by the Family Court vide Order dated 18-10-2023. However, neither the husband nor his family availed liberty granted by the Court. Another application was filed by the father seeking interim/temporary custody of the child to celebrate Diwali and other festivals which was dismissed by the Family Court vide Order dated 09-11-2023.
In the impugned order, the Family Court observed that the child was found to be uncomfortable in the presence of his father and that if interim custody were granted, it would cause mental trauma to the child.
At the hearing of the present appeal, the Court was informed that due to the absence of a counsellor, the father could not meet the child. To this, the Court directed the Family Judge concerned to ensure the presence of a counsellor on the dates fixed for visitation. On the next date of hearing, the Court directed that the counsellor will submit a report of the meetings.
Further, the Court perused the report dated 21-02-2024 which stated that the child was apprehensive and it seemed that the meetings were forced upon him. Considering this, the Court directed for a second opinion to be taken by ‘Children’s First’, a mental health organization for children and the parents were directed to approach them along with the child.
On 20-03-2024, the father sought the implementation of visitation rights by filing a fresh application. Notice was issued and the District Judge was directed to place a report on record regarding the application. On the next date of hearing, the Court noted that despite various options given to the father, he refused to interact with the child.
At the hearing on 14-05-2024, the Court noted that it was the stand of the father that he did not wish to exercise visitation rights in the presence of the mother. As an alternative, the father asked for the child to be allowed to visit his paternal grandparents who resided in the same house and that he would not be present during the interaction.
Analysis and Decision
The Court stated that it was a settled position of law that in matters of custody of a minor child, the Court has to look into the best interest of the child. The Court stated that it could not be disputed that a minor child required the love and affection of both parents which meant that even if the custody of the child was with one parent, the other parent must have visitation rights.
The Court noted that the report from ‘Children’s First’ stated that the child did not like to meet his father or visit the Court regularly as it made him feel uncomfortable. The report also stated that the child required detailed assessment over the next 8 to 12 weeks during which there should be no contact, physical, or virtual between the child and his father.
The Court noted that a report from the Family Court Counsellor also stated that the child should be given some time so that he could be counselled to interact with his father in a healthy manner. The report also stated that the father was not happy with this approach and sought to threaten the counsellor.
The Court took note of the tender age of the child i.e., 8 years and was unable to grant interim custody of the child to the father. The Court also stated that they could not accept the suggestion of the father that the child be sent to visit his grandparents since these interactions could be fruitful only if the child was able to overcome his deep apprehensions about meeting his father.
The Court stated that some more time was required for the child to be comfortable in the presence of his father and held that the twice-a-month meetings in the presence of the counsellor at Dwarka Courts should continue to attain this objective. Thus, the Court held that there were no grounds for interfering with the impugned order passed by the Family Court.
[Amit Sharma v. Sugandha Sharma, 2024 SCC OnLine Del 4655, Decided on 09-07-2024]
*Judgment pronounced by Justice Amit Bansal
Advocates who appeared in this case :
For Appellant — Party-in-person
For Respondent — Advocate Tariq Ahmed
