PRABHAT KUMAR Vs. HIMALINI

JUDGEMENT

(1.) Both the warring parents being dissatisfied with the order dated 6th April, 2009 of the Guardianship Judge qua interim custody / visitation rights of the minor girl child have preferred these petitions challenging the same. The Guardianship Judge has vide the impugned order permitted the father alone (and not any relative of his) to meet the child Gauri born on 6th December, 1997, between 1:00 p.m. to 5:00 p.m. at Patiala House Courts Complex before learned Duty Magistrate on every Sunday and at Delhi Gymkhana Club or any other mutually agreed venue on the birthday or any other important Hindu festivals and prohibited the mother from taking the child out of Delhi without the permission of the court. The father has approached this Court seeking interim custody of the minor and the mother has approached this court seeking to stop the father from meeting / visiting the minor as permitted by the Guardianship Judge.

(2.) This court vide ex parte order dated 29th April, 2009 in CM(M) No.373/2009, on the plea of the senior counsel for the father that meeting the child in the presence of the Duty Magistrate would be torturous and not in the interest of the child, allowed the father to meet the child once a day for one hour at any time. Subsequently, with the consent of the parents, on 22nd May, 2009 it was ordered that the father would meet the child at the mother's residence thrice a week between 7:30 p.m. and 8:30 p.m.; the mother was also permitted to take the child to Himachal Pradesh for a period of 10 days in June, 2009; the father was permitted to speak to the child during that time on telephone; the condition imposed by the Guardianship Judge restraining the mother from taking the child out of Delhi was also removed subject to the mother giving a reasonable prior notice to the father of her intent to travel with the child. The child was subsequently examined by this court. Keeping in view the exchange with the child, the arrangement earlier made was modified; the father was permitted to meet the child every Sunday from 12:00 noon to 5:00 p.m. and for this purpose to pick up the child from the residence of the mother and drop her back in the evening. A Court Commissioner was also appointed to supervise the said visits. It was further ordered that the father would be entitled to take the child for lunch, shopping, movies etc. and even to his own house to meet the paternal grandparents; arrangement was also made for interim visitation on the occasion of Dusshera; it was clarified that the Local Commissioner was being appointed only in view of the contradictory stand of the parents qua the reaction of the child towards the father; the father was also permitted to occasionally have telephonic conversations with the child.

(3.) The Local Commissioner appointed by this court has given the report of the interaction of the child with the father on three Sundays. A perusal thereof shows that though on each of the occasions there was initial reluctance of the child to leave the mother's house and to go with the father but as the day progressed the child was found to be more at ease. The child is also reported to be having a rapport with the father. However, the child from time to time was withdrawn. All these observations are understandable in the context. The child is caught in the war between the two parents. It appears that neither of the parents have shown maturity enough to leave the child out of their mutual differences. The Guardianship Judge has also after an interaction with the child observed that each of the parents is using the child as a pawn against the other. This court can only express regret at such attitude of the parents. The parents even if having mutual differences and incompatibility owe a duty to permit least impact thereof on the child. The child ought to be permitted to grow with the mutual affection as is normal of both parents; the parents ought not to instigate the child against each other and/or to spite the other, ought not to attempt to show the other down in the presence of or through a reference before the child. These are not empty words or utopian thoughts incapable of achievement. Cases are known where children of such warring spouses have come out nearly completely unscathed by the duel between the parents and enjoy an excellent relationship with both parents. The children have an inherent capability to adapt to the situation. Unfortunately, such capability is sought to be suppressed by the parents. The parents instead of letting the children decide for themselves or to have a free flow interaction with both parents are often found to be luring the child away from the other forgetting that for proper development of a child, the love, affection, companionship, guidance of both parents is essential. They forget that their roles as spouses and as parents are entirely different. They allow the same to merge and which can only be to the detriment of the child. I have expressed my thoughts and anguish in the hope that the parents at least in the present case would in the future attempt to keep their acrimony as far away as possible from the child. In the present case, both parents are well educated and belong to a responsible strata of society. Their focus should be to maintain a peaceful environment for the child in both homes, so as to allow full cognitive development of the child and to have a positive impact on the mental health of the child. That is the need of the hour.