Mrs. Althea Verna Wasdell vs Mr. Brendon Alfred Wasdell

S. Abdul Nazeer, J.—In these cases, the petitioner has called in question the validity of the order on I.A. Nos. 3 and 5 dated 16.4.2012 in M.C. No. 3589/2011 on the file of the 4th Additional Principal Judge, Family Court, Bangalore. The petitioner filed a petition for dissolution of her marriage with the respondent in M.C. No. 3589/2011 before the Court below. In the said case, she filed I.A. No. 3 seeking a direction to the respondent to pay Rs. 10,000/-per month to each of their children as interim maintenance. The respondent filed an application I.A. No. 5 seeking interim custody of the minor child Faye or in the alternative for grant of visitation rights every week end and half the summer, winter and Christmas vacation. The Court below has passed an order granting interim maintenance of Rs. 4,250/- p.m. towards the 2nd daughter Faye till she attains majority. The Court below has granted visitation rights of the 2nd daughter to the respondent every Saturday at the Court premises from 2 p.m. to 5 p.m. except on the 2nd Saturday.

Learned Counsel for the petitioner submits that the respondent is well placed in life. He is drawing more than Rs. 50,000/- per month. Their 1st daughter is studying in Mount Carmel College, Bangalore. The petitioner has to maintain the 1st daughter and also her never bothered to take care of the children at any point of time. The 2nd daughter is not willing to meet the respondent. Learned Counsel has taken me through educational expenses. The 2nd daughter is also going to school. She is 10 years old. Therefore, the Court below, ought to have granted at least Rs. 10,000/- per month towards her interim maintenance.

It is her further submission that the petitioner and the respondent are living separately for the past over two years. The children are in her custody. The respondent never bothered to take care of the children at any point of time. The 2nd daughter is not willing to meet the respondent. Learned Counsel has taken me through various documents produced along with the writ petition in this regard. It is argued that if the child is forced to see her father, it will have serious impact on her. Relying on the decision of the Apex Court in Gaytri Bajaj Vs. Jiten Bhalla, she submits that if the child having expressed her reluctance to go with the father even for a short duration of time and that she is happy with her mother, the visitation light cannot be granted to the father.

On the other hand, learned Counsel for the respondent submits that the petitioner is also employed. Taking into account the facts and circumstances of the case the Court below has granted interim maintenance of Rs. 4,250/- per month to the 2nd child which is just and reasonable. It is further argued that the Court below has only granted visitation rights in the Court premises on every Saturday between 2 p.m. to 5 p.m. except on 2nd Saturday. The petitioner has failed to obey the said order. It is argued that in the interest and welfare of the minor child, the respondent should be granted visitation rights. She prays for dismissal of the writ petitions.

It is not in dispute that the respondent is employed in a software company and is earning more than Rs. 50,000/- per month. Both the children are staying with the petitioner. Admittedly, the 1st daughter is studying at Mount Carmel College, Bangalore. No maintenance has been granted to her. The petitioner has to take care of her maintenance as also her educational expenses. The 2nd daughter is aged about 10 years. She is also going to a school. I am of the opinion that the maintenance of Rs. 4,250/- per month granted by the Court below is on a lower side. Having regard to the facts and circumstances of the case, it is just and proper to direct the respondent to pay maintenance in a sum of Rs. 7,500/- per month to the petitioner for the maintenance of her 2nd daughter.

The Court below has directed visitation rights of the minor daughter of Faye on every Saturday from 2 p.m. to 5 p.m. at the court premises except on 2nd Saturday. The materials on record would clearly disclose that the child Faye is not willing to meet her father. It appears that she has also written a letter stating that she is not willing to meet her father.

In Gaytri Bajaj''s Case (supra), the Apex Court has held that an order of custody of minor child is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.

The Court below has not considered the case keeping in mind the aforesaid principles. I am of the view that the Court below has to reconsider the matter. In the light of the above discussion, I pass the following order:

(i) The respondent is directed to pay maintenance to the petitioner in a sum of Rs. 7,500/- per month w.e.f. 1.4.2013 pending disposal of M.C. No. 3589/2011 before the Court below. The order on I.A. No. 3 stands modified accordingly.

(ii) The order on I.A. No. 5 dated 16.4.2012 is hereby quashed. The matter is remanded to the Court below for fresh of the writ petitions as above, I.A. No. 1/2013 does not survive for consideration. It is accordingly dismissed. No costs.

(iii) The parties are permitted to produce additional documents before the Court below in support of their respective contentions within a period of four weeks from today.

(iv) Writ petitions are disposed of accordingly.

(v) In view of disposal of the writ petitions as above, I.A. No. 1/2013 does not survive for consideration. It is accordingly dismissed. No costs.