Firoz Khan vs Shaheen Perween Khan

Mr. Mokhtar Khan, learned counsel appears for the appellant-husband-and father, who is pursuing this appeal for enlargement of visitation rights during annual vacation for his only son, Md. Shad. Mr. Arpan Mishra, learned counsel appears for respondent-mother through Video Conferencing.

By the impugned judgment dated 29.11,2016 rendered by learned Principal Judge, Family Court, Jamshedpur in Guardianship Case No. 03 of 2010, learned Family Court allowed physical custody of child, Md. Shad then aged 12 years in favour of the mother. Appellant-father was granted visitation rights with liberty to visit his son at least once in a month, preferably on Sunday with prior intimation to the respondent for a period not less than 6.00 hours commencing from 10:00 A.M to 4:00 P.M. Applicant/appellant herein was also allowed sharing of annual vacation during winter as well as during summer, where he was granted right to keep his son along with his parents at appropriate place i.e., either at his parents' home or at his work place for the period of seven days, where after, he was to bring back the minor child to the custody of the respondent. This sharing of vacation by the applicant was to be preferably in the 1st half of the vacation.

The only prayer of the appellant-father in this appeal is enlargement of the period of custody of minor son in his favour during both annual vacations. During proceedings of the instant appeal, this Court directed the appellant to state on affidavit as to how much maintenance amount, awarded by learned Family Court, has been paid in favour of the wife and the minor child. By a supplementary affidavit filed on 11.09.2020, appellant has stated that out of total maintenance amount of Rs. 6,25,000/- in equal proportion awarded in favour of the wife and the child, appellant has paid a sum of Rs. 50,000/- on 26th May, 2018, Rs. 15,000/- on 28th June, 2018 and Rs. 5,000/- on 28th July, 2018, totalling Rs. 70,000/-. Learned counsel for the appellant informs that Criminal Revision has been preferred against the order of maintenance before this Court.

Learned counsel for the appellant submits that the respondent has liberty to seek enforcement of the order of maintenance before the competent court. The prayer for enlargement of visitation rights, rather custody of the minor child with the appellant-father during annual vacations is very fair since father would be getting only one week time in each vacation to spend with his son during the entire year. The child deserves love, care and affection of both the parents in the concept of shared parenting. A larger time for sharing the custody of the child only during vacation in favour of the father would not denude the absolute physical custody of the child granted in favour of the mother. On the contrary it will help the child to grow in an environment, where he will be able to get proper care and affection of the father and paternal grandparents also. The appellant is only praying for enlargement of time during vacation and not during rest of the year when school is open, considering that the child's education is paramount.

Learned counsel for the respondent-wife has made feeble opposition to the prayer. It is however, submitted that the appellant has not been fulfilling his obligation so far as payment of maintenance to the wife and the minor son is concerned. As per supplementary affidavit of the appellant also, only Rs. 70,000/- has been paid in the last almost 4 years since the order of maintenance was passed on 29th November, 2016. Appellant may be directed to make regular payment of maintenance henceforth if his intention is bonafide and he is really keen and eager to shower love and affection upon his child.

We have considered the submission of learned counsel for the parties in the light of the facts and circumstances noted above and also gone through the impugned judgment. Since the issue raised in this appeal is on a very narrow compass, we deem it proper to dispose of the appeal at the admission stage itself, without calling for Lower Court Records, with the consent of the parties. We are of the view that since the mother is having physical custody of the child about 16 years now, throughout the year and that the father has been allowed visitation rights at least once in a month for six hours on Sunday and physical custody of the child for one week / 7 days only during annual vacation, it would only be fair and proper that the time sharing during the annual vacation between two spouses for the child, Md. Shad is proportionately divided, so that the father and paternal grandparents also get enough time to spend with their minor child. As such, the period of custody of the minor child during annual vacation is enlarged in the manner that in case the vacation is for four weeks, father will have custody for 2 weeks i.e. 14 days. If the vacation is for a lesser period or larger period beyond four weeks, the time would be divided in equal proportion i.e., half of the time during annual vacation be spent with his father and rest half with the mother.

As ordered by learned Family Court also, sharing of vacation by the appellant with the child should be preferably in the first half of the vacation, so that he can return within time and complete his home work etc. before reopening of the school. This should be the responsibility of the appellant to bring back the minor child into the custody of the respondent after the period of custody spent with him.

Learned counsel for the appellant has fairly submitted that despite practical difficulties due to lock down, appellant is ready to pay an instalment of Rs. 50,000/- towards the maintenance awarded in favour of child by 5th November, 2020 as per mode and manner, in which it was paid earlier or through the Family Court concerned at Jamshedpur. Appellant had also made a request before this Court when the case was taken up on 10th August, 2020 to allow him to exercise contact rights through cell phone or any other digital mode since physical contact is hardly possible due to restriction imposed during this pandemic. We do not feel any reason to deny contact rights in favour of the father with the minor child. Appellant should however exercise contact rights only during convenient hours of the day and also keeping into account that regular studies etc. of the child are not affected by calling him very frequently. The child can be contacted on the following number of the respondent-mother:

9204789800 Learned counsel for the appellant further submits that appellant would continue to pay regular maintenance to the minor child as directed by learned Family Court, however, subject to outcome of the Criminal Revision.

With the aforesaid modification in the impugned judgment and decree, the appeal stands disposed of. Decree accordingly.