Mother does NOT get automatic custody of minor kids. Kids want 2 stay with father. Mother claims 2 b cured of mental sickness, still looses case.

In this classic case the High court grants custody of kids to the Father as the kids want to live with him
Mother does NOT get automatic custody of minor kidss. Kids want 2 stay with father. Mother claims 2 b cured of mental sickness, still looses case.

Quoting the honourable court “…As per direction of the court, children were brought and  were asked to live with the mother for few days. The suggestion was bluntly refused by the children. The counsel for the mother made suggestion for for few days custody but it could not have been ordered by exerting pressure on the children to go with mother. This court cannot create such a situation where children may come in depression. The issue of the custody of the children is a sensitive issue and cannot be dealt with in a mechanical manner.

The age of the children was also taken up as an issue as one child is at the age of 7 years and would not be in a position to form the opinion. The another child at the age of 13-14 years was also asked about her opinion and she had shown her desire to live with the father. This court cannot divide the children when they are living together since beginning. It is not disputed by the parties that both the children are pursuing their studies, thus taking the case in totality, I find that the orders passed by the court below are nothing but mechanical in manner. The courts below were not sensitive to the issue and passed order of custody as if it can be handled with a stick of magic. …..”

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH JAIPUR

S.B. Criminal Misc. Petition No.4235/2014

Anurag Vashisht

Versus

Smt. Kusum

DATE OF ORDER      :       4th July, 2015

HON’BLE MR. JUSTICE M.N. BHANDARI

Mr. Ashok Mehta, Sr. Adv. with Mr. Sudhir Jain, for petitioner

Mr. S.R. Surana, Sr. Adv. with Mr. K.K. Chhawal, for non-petitioner

***

By this petition, a challenge is made to the order dated 27.08.2014 passed by Additional Chief Metropolitan Magistrate No.8, Jaipur Metropolitan under Section 21 of Protection of Women from Domestic Violence Act, 2005 (in short “Act of 2005”). A further challenge is made to the order of Additional District & Sessions Judge, dismissing the appeal against the order of learned Magistrate.

Learned counsel for petitioner submits that an application under Section 12 of the Act of 2005 was filed by the non-petitioner along with many-fold prayers. In the said application, prayer for custody of the children was also made. Learned Additional Chief Judicial Magistrate passed an interim order directing custody of son Atharv. For custody of daughter Hisha, similar directions were ordered to apply. The challenge to the said order was made by filing an appeal but it was dismissed without considering any of the issues raised therein.

Learned Senior Advocate Shri Ashok Mehta submits that an interim order under Section 21 of the Act of 2005 has been passed for custody as the disease of the non-petitioner-complainant has been cured. The non-petitioner submitted that she was suffering from mental ailment but recovered completely. The medical certificates  of Doctors were produced to show that she is not suffering from the disease presently. Learned Magistrate then passed the order under  Section 21 of the Act of 2005, which provides for custody of the child. A further reference of Section 23 is given, which gives jurisdiction to the court to pass interim order. The direction for interim custody of the children was given in reference to the aforesaid facts and by relying on a judgment in the case of Anwar Bhai Vs. Mumtaz Ben reported in AIR 2010 (NOC) 627 (Gujarat) where custody of the minor children was allowed. The non-petitioner said to be earning a sum of Rs.3,63,000/- per year being Homoeopathic Doctor, thus would be in a position to take care of the children and accordingly order was passed.

The appellate court confirmed the order without considering that mere submission of the application under Section 21 does not mean that in all circumstances, the custody of the child is to be given to the mother. The desire of the children should also be taken into consideration so as their welfare. In the instant case, children were not called to find out their desire. The courts below passed mechanical orders ignoring the aforesaid. A reference of judgment in the case of Mausami Moitra Ganguli Vs. Jayanti Ganguli, reported in AIR 2008 SC 2262 was given apart from few judgments of the High Court. In the case of Mausami Moitra Ganguli (supra), the custody of the child at the age of three years was allowed in favour of the father but the judgment aforesaid was ignored in the light of financial condition of the mother.

Learned counsel further stated that this court had accepted repeated requests of the mother to allow her to meet the children. The prayer was allowed on many occasions but children had shown their desire to live with the father. In the background aforesaid, this court may quash the order by maintaining the custody of the children with the father.

Learned Senior Counsel Shri S.R. Surana appearing for non-petitioner raised objection regarding maintainability of the petition under Section 482 Cr.P.C. A criminal revision petition would be maintainable and otherwise dispute is of civil nature. A reference of judgment of the Division Bench has been given apart from showing the nature of dispute and the procedure. The petition under Section 482 Cr.P.C. would not be maintainable against the order passed by the appellate court.

After an order for interim custody, an appeal was preferred and dismissed. If the petitioner was aggrieved by the order of the appellate court, a criminal revision petition could have been maintained. It is further submitted that proceedings under the Act of 2005 are of civil nature, thus even the aforesaid remedy would not be available to the petitioner. A reference of judgment of the Division Bench of this court in the case of Smt. Sabana alias Chand Bai & Anr. Vs. Mohd. Talib Ali & Anr., reported in 2014 CRI.L.J. 866 has been given. A further reference of judgment in the case of Mohit Alias Sonu & Anr. v/s State of Uttar Pradesh & Anr., reported in (2013) 7 SCC 789  has been given. The order passed in the present case is  not interlocutory in nature, thus if it is not taken to be a case of civil nature then also revision petition alone would be maintainable. Prayer is accordingly made to dismiss the petition on the preliminary objection itself.

Learned Senior Counsel Shri S.R. Surana further made reference of the facts of this case. It is submitted that non-petitioner is not suffering from any disease so as to deprive her from custody of the children. The allegation of disease is nothing but created by the petitioner himself. If non-petitioner was suffering from the disease, she could not have given birth to the children. The medical certificate so produced was creation of the petitioner himself, hence not entitled to be relied. Learned counsel for non-petitioner referred literature of many books where type of disease has been described.

He urged that when wife becomes more successful than husband, such allegations are made and become root cause for egos and arrogance. This has happened in this case also. The wife was willing to live with the husband but was disowned. Looking to the facts of the case, denial of custody on the ground of so-called illness and ailment would not be proper. The subsequent certificate otherwise shows that the non-petitioner is not suffering from any disease presently.

Learned counsel further submits that the children are at the tender age, thus their natural custody remains with the mother. The children were called in the court to find out their willingness, however as they were tutored by the father, thus refused to go with the mother. The tutoring is the main reason for refusal to go with the mother. The custody of children should have been given to the mother atleast for few days to take proper and free willingness of the children.

Learned counsel for non-petitioner lastly contended that mother is known for love and affection of children which cannot be given by the father, thus court should go with the nature. Looking to the fact that even under the Guardianship and Wards Act, till the child attains the age of seven years, the natural guardian is none else but the mother. Hence while maintaining the impugned order, the petition may be dismissed.

I have considered the rival submissions made by the parties and perused the record.

The non-petitioner filed an application under Section 12 of the Act of 2005 along with prayer for interim relief under Section 21 of the Act of 2005. The perusal of the order of the learned Magistrate does not sow that initially allegations of ailment were made by the petitioner but was stated by the non-petitioner herself. The court has referred admission of the disease by the non-petitioner herself. Since disease has been cured, custody was given to the mother. A reference of aforesaid fact is given because serious contest about the allegation of disease by the husband was made by learned counsel for non-petitioner. It is said to be creation of the petitioner. It is even urged that those medical certificates were obtained by manipulation and infact non-petitioner never suffered from any ailment. The relevant part of the order of the learned Magistrate is quoted hereunder to show admission of the non-petitioner-wife about her ailment:

“?????????? ?????? ?? ??????? ????? ?? ????? ? ???? ???? ?? OCD ?????? ?? ?? ???????? ??? ?? ??, ?? ?? ??? ?? ???? ?? ???? ??, ?? ?? ?????? ?? ?????? ??? ????? ?? ??? ????????? ?????? ????? ?????? ?? ?????? ???? ??? ??????? ??? ????????? ?????? ????? ?????? ???? ????, ?? ?? ????? ?? ?????? ?? ??????? ??????? ???????, ??? ????, ????? ??? ???? ??????????? ??????? ????? ???? ??? ????? ???? ????? ???? ??????? ?????? ???????, ??? ?????, ????? ?? ?????????? ???? ????? ?? ???????-2012 ?? ?? ?? ???? ??????? ?? ????? ????????????? ????????? ?? ?????? ?? ?????? ?? ???? ?? ???? ???? ?? ?? ????????? ???? ??????? ?? 30 ???? ????? ????? ???? ?? ??????? ???? ??? ????? ?????? ???? ?????? ?? ?? ????? ???? ??? ?????????? ?????? ?? ?????? ?? ?????? ???? ?? ?? ???? ???? ??, ?? ?? ?????????? ?? ????? ?? ??? ???? ???? ?????? ???? ???? ?? ???? ?? ??????? ??? ?? ?????? ?????? ????? ?? ???????, ????????????, ???? ?????????? ?? ???????? ?? ????? ?? ??? ??????? ???? ?? ?? ?? ???? ??????? ?? ?? ?? ????? ?? ?????? ??? ???? ??, ?? ?? ????: ?? ??? ???? ???? ??? ???? ?? ????????? ?? ???? ?????? ??? ?? ?????? ???? ?? ?? ??? ???? ?? ??????? ?? ?????? ?????? ?? ?????? ??? ?? ????????? ???? ???? ??? ?? ????????? ?? ???????? ????????? ?? ???? ?????? ??? ????????? ???? ??, ???? ?? ??? ????? ???? ?? ?? ??? ??????? ??????? ?????? ???? ?????? ?? ????????? ???? ???, ?? ???? ?????? ?????? ????? ?????? ???? ?? ???????? ???? ?? ? ???? ?? ????? ??? ???? ?????? ?? ?????? ?? ?????? ???????? ?? ?????? ??, ?? ?? ??????? ?? ????? ?? ?? ???? ???? ?? ????? ????? ?? ?? ???? ????? ?? ??????? ?? ??? ?? ?? ???? ?? ????? ?? ?????? ??? ???? ????? ?? ? ??? ????? ?? ??? ??????? ?????? ??? ???????????? ??? ???? ??? ????? ??? ???? ?????? ?? ????? ??? ???????? ??????? ??? ???? ?????? ?? ????? ???? ??? ?????? ??? ????????? ?? ????? ??? ??? ???????? ??. ??? ???? ????? ?????? ?? ???? ???? ???? ??, ??? ??????? ?? ??????? ??????? ??? ?????? 28.10.13 ?? ?????? ?????? 15.07.14 ?? ?? ???????? ??? ?????? ??, ?? ???????? ?? ?? ??? ????? ???? ?? ?? ????????? ?? ??????? ??? ???? ?????? ?? ?????? ?????? ?? ??? ??????? ?? ???????? ???? ???? ????? ??? ???????? ???????? ?? ????? ????? ??????? ?? ?????? ?????? ?? ???? ?? ?? ????????? ??????? ??? ?????? ????? ?????? ???”

The para quoted above shows that non-petitioner was suffering from the disease but has been cured.

It is, thus not correct to state that false certificates were created by the husband or allegations were falsely made by the petitioner regarding ailment of the non-petitioner. The impugned order shows that non-petitioner has recovered from the disease and she is now carrying work conveniently. It is also found that she has been employed by Shreeram Homeo Clinic, Ram Mandir, Jaipur and paid handsome salary. In view of the facts given above, it becomes clear that so far as ailment of the non-petitioner is concerned, it is not presently existing. Thus I am not required to refer books cited by learned counsel for non-petitioner on the subject.

The question now comes as to whether custody of the children should be given in view of the above and only for the reason that prayer under Section 21 has been made. It would be necessary to clarify that as per Section 23 of the Act of 2005, the court can pass interim order, which includes even for custody of the children. The court is well within its right to pass appropriate order. It should not construe that even a case is not made out, an interim order is to be passed. The interim order can be passed only in appropriate case and not in all the cases where prayer is made. The prayer should be accepted subject to scrutiny by the judicial process. In the instant case, learned Magistrate has been pursued himself in passing the impugned order looking to the financial capacity and as mother is not suffering from any ailment.

The impugned order does not show that children were called to find out their desire. The same is the position of the revisional court. It is nothing but the orders have been passed in mechanical manner without finding out desire of the children. It is moreso when several judgments of the Hon’ble Supreme Court mandate for the opinion of the children.

This court made endeavour to settle the dispute between husband & wife and passed orders from time to time. Rejoining of the husband and wife would have solved the problem of custody of the children also. No settlement could be arrived because of serious dispute between husband and wife. The prayer was then made by the non-petitioner-mother to allow her to meet children and talk to them so that they can be brought out of the influence of the father. This court then allowed the mother to meet children in the chamber but at that time even father was present, thus meeting is not said to be useful.

As per prayer of the mother and her counsel, an independent meeting was organized at the residence of her Advocate. It was for a period of three hours to meet the children properly so that they may make independent opinion. This court was then informed that despite arrangement aforesaid, the children are so adamant that they are not hearing the mother. The prayer was made to allow custody atleast for a period of two days so that children may remain with the mother at her place and be taken out of alleged tutoring of the father. This court accepted the prayer and asked the petitioner-father to bring the children so that they may be sent with the mother for a reasonable period. An undertaking was, however, taken from the mother that if any untoward incident takes place, she will bear the responsibility. The children were accordingly brought for custody to the mother but they bluntly refused to go with the mother. A direction for forceful custody cannot be given which may cause reaction in the mind of the children detrimental to their health and future. All the efforts were made so that children may go with the mother atleast for reasonable period so as to convince them about custody of the mother but effort failed.

This court also interacted with the children to convince them to remain with mother for a reasonable period but describing the past events, they refused to go with the mother. I am not taking up the issue as to what happened in past but facts have been brought on record to show status of the children. In the background aforesaid, I have considered the issue as to whether custody should be given in all circumstances to the mother or it can be denied in an appropriate case. In the case of Mausami Moitra Ganguli (supra), the Apex Court dealing with the similar issue under Guardians and Wards Act denied custody to the mother as she left the children at the age of three years. The children were studying in good school having group of friends, etc. to deny custody to the mother. The financial resource was one of the issues considered by the court.

The question is whether issue of custody can be determined based on financial resources of the parents. In my opinion, aforesaid cannot be sole criteria to determine issue of custody. Each case has to be decided on its facts and therein paramount consideration should be welfare of the children apart from their willingness. In the instant case, both the children are living with father for last many years. When their willingness was asked by the court, both of them desired to live with father only. The allegation of tutoring by father was made. This court at the first instance allowed the mother to meet children but it was in the presence of father, thus not taken to be effective. On the request of the counsel for the mother, meeting for three hours was arranged at the residence of the counsel, that too, without presence of the father. The aforesaid effort did not work as was reported by the counsel himself though by repeating allegation of tutoring. A suggestion was given to allow the children to live with mother for few days. The aforesaid suggestion of the mother was accepted by the court and accordingly father was directed to bring the children. As per direction of the court, children were brought and  were asked to live with the mother for few days. The suggestion was bluntly refused by the children. The counsel for the mother made suggestion for for few days custody but it could not have been ordered by exerting pressure on the children to go with mother. This court cannot create such a situation where children may come in depression. The issue of the custody of the children is a sensitive issue and cannot be dealt with in a mechanical manner.

The age of the children was also taken up as an issue as one child is at the age of 7 years and would not be in a position to form the opinion. The another child at the age of 13-14 years was also asked about her opinion and she had shown her desire to live with the father. This court cannot divide the children when they are living together since beginning. It is not disputed by the parties that both the children are pursuing their studies, thus taking the case in totality, I find that the orders passed by the court below are nothing but mechanical in manner. The courts below were not sensitive to the issue and passed order of custody as if it can be handled with a stick of magic. The impugned order does not show any effort of the court below to initially arrange meetings of the children with mother so as to tilt their opinion in favour of mother though the aforesaid efforts were made by this court but could not get result.

In view of the discussion made above, I do not find any reason to allow the impugned orders to stand, thus both the orders are set aside.

The petition is allowed with the aforesaid.

[M.N.BHANDARI], J.

Certificate:

“All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.” \

FATEH RAJ BOHRA, Sr. P.A

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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