Renuka Nair vs G. Satish

T. Ch. Surya Rao, J.—The instant revision petition is directed against the order, dated 29-7-2005, passed by the learned Judge, Family Court, Secunderabad, in LA. No. 495 of 2005 in O.P. No. 280 of 2005.

The revision petitioner is the petitioner, who filed O.P. No. 280 of 2005 for dissolution of her marriage with the respondent-husband on the ground of cruelty and also sought for custody of minor son u/s 26 of the Hindu Marriage Act. While the O.P. No. 280 of 2005 pending adjudication, she filed concomitant petition in LA. No. 495 of 2005 under Order 39, Rules 1 and 2 read with Section 151 of the CPC seeking temporary injunction restraining the respondent from removing the minor from her custody pending disposal of the main petition. Initially, an ad-interim injunction was granted in favour of the petitioner, after having heard either side. When that application sought to be resisted by the husband, eventually under the impugned order the learned Judge vacated the ad-interim injunction granted earlier. At the same time, the Court granted visitation rights to the respondent. That is now sought to be assailed by the revision petitioner.

The relationship, inter se, between the parties is not in dispute. Obviously, inasmuch as there is no love lost in between the couple and the same having been stretched to the point of irretrievable breaking down of marital tie, the wife filed the application seeking divorce from her husband. She begot a child through her husband, who was named as Master Varin Nair. Admittedly, the custody of the minor has been with the wife-the revision petitioner. The divorce petition has been filed on the ground of mental and physical cruelty attributed squarely to the respondent-husband. Alleging threat of removal of the custody of the minor son over phone and apprehending that such threats will be translated into the acts, the petitioner filed the interlocutory application seeking interim injunction.

Denying the allegations made, inter alia, in the affidavit filed in support of the petitioner, the respondent questioned the maintainability of the application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure. However, the respondent pleaded an understanding between him and the petitioner, as per which the child shall spend his weekends with the father and pursuant to that understanding, according to the respondent, the child was being taken on the evening of every Friday by him and giving back the custody to the mother on the evening of the Sunday in every week. Having regard to the respective contentions and admitted fact of the custody of the minor remaining with the mother, the Court below while vacating the initial ad-interim injunction granted by it, directed that the custody of the child be given to the respondent-husband at the weekends i.e., on the evening of the Friday at 6 p.m., till 6 p.m., of Sunday.

The grievance of the petitioner appears to be that she has been looking after the welfare of the child well by appointing fulltime maid to look after the boy and at every Saturday and Sunday the boy would be going for playing tennis in between 5 p.m., to 6.30 p.m., accompanied by her and that the boy would be attending to music class on every Saturday morning between 9.30 a.m., and 10.30 a.m., and on Monday evening and, therefore, if the custody of the child is removed from her, his welfare would be at stake and the entire schedule of the boy for his education and for the extra-curricular activities would get disturbed. It is her case that having regard to the nature of the job of the respondent, which involves a lot of travelling, he cannot spare any time towards the child.

At the time of enquiry, no evidence whatsoever has been placed before the Court below. At the time of hearing in the instant revision petition, the learned Counsel appearing for the revision petitioner seeks to place reliance upon certain documents. The endeavour appears to be to falsify the arrangement understanding setout, inter alia, in the counter by the respondent. The learned Counsel for the revision petitioner seeks to contend that the language used in the correspondence by means of E.mail would reflect the conduct on the part of the respondent, who owns unequivocally the fault on his part and for the state of affairs in between the coupe. Apart from the correspondence, certain third party affidavits are sought to be filed to buttress the contention that the mother is looking after the welfare of the child and the curricular and extra-curricular activities of the child.

At this juncture, the merits of the case are not germane, since the Court is not adjudicating the main dispute in between the parties. While vacating the ad-interim injunction granted by the Court, the Court granted certain visitation rights to the husband. Whether under the facts and circumstances of the case such an order passed by the Court below is correct or not is the question. Whether by means of such an arrangement, the welfare of the child would in any manner get affected is yet another question to be considered.

The custody of the minor child is obviously with the mother. The respondent in his counter, inter alia, unequivocally pleaded that there had been no occasion for him to disturb the child from the custody of the petitioner, nor did he make any such attempt to remove the child from the custody of his mother. However, he pleaded an arrangement or understanding between them. An endeavour has been made by the learned Counsel for the petitioner to show that such an understanding is obviously false and the Court below without going into the truth or otherwise of such an understanding simply placed reliance on the same. Having regard to the fact that the respondent is the father of the child and even in the absence of such an understanding as is sought to be set-forth by him, the father being natural guardian will certainly have the right to see his own child. The visitation rights of the father, when the child is obviously in the custody of the mother, cannot be denied. The question, therefore, under the circumstances, is by such visitation rights the welfare of the minor child would in any manner get affected. It is sought to be projected by the revision petitioner that the curricular and extra-curricular activities of the child are such that on account of the nature of the job of the respondent, the activities of the child would get disturbed. The Court below has granted the visitation rights by directing the custody of the child be given to his father at the weekends i.e., at 6 p.m., on the evening of Friday till 6 p.m., on the evening of the Sunday. According to the petitioner, the child plays tennis in the evening of both those days for a period of 1 1/2 hours and the mother would be accompanying him to the tennis court, which is nearer to her house. Her contention that the respondent will be touring all the six days, except on Sunday, is not supported by any cogent evidence. The plea of the respondent, on the other hand, is that there is no need for him to tour extensively, except on occasions where his presence is required elsewhere. By giving custody of the minor child to the father, it is quite incomprehensive to say that the extra-curricular activities of the child will get disturbed. It is not as if the father cannot take him to the tennis Court, allowing him to play tennis, and get back the child. Yet another contention that is sought to be set-forth herein on the side of the petitioner is that she will be attending to the office on five days in a week and at the weekends she spends the precious time along with her child. By pleading such affection towards the child, she cannot deny the same affection from the father towards the child, if any. As discussed hereinabove, the right of the father to visit his own child cannot be denied, so long as it is not interfering with the welfare of the child. When the father and mother are equally interested in the child,

except to the extent of differences and dissentions in between them, inter se, such differences need not come in the way of the welfare of the child. In my considered view, therefore, no illegality or material irregularity that has been committed by the Court below in having granted the visitation rights to the father, while refusing to grant injunction as prayed for by the mother. It is also noteworthy at this juncture that the respondent has squarely pleaded that he is not the person to interfere with custody of the minor with the mother, which symbolizes the conduct on his part.

The learned Counsel for the petitioner seeks to place reliance upon the judgment of the apex Court in Kumar V. Jahgirdar Vs. Chetana K. Ramatheertha, , wherein the apex Court held that the welfare and the interest of the child are the paramount considerations, but not the convenience of either of the parents. There can be no quarrel with the proposition laid down by the apex Court. The facts appear to be altogether different. Her application filed seeking permanent custody of the child was rejected by the Court, while permitting her to take the child abroad. In the appeal before the High Court, she was granted custody for one year from the date of the order in modification of earlier order. The way in which the orders have come to be passed by the lower Court, as well as High Court, have been found fault with by the Apex Court on the premise that the Courts failed to consider the welfare of the child. Certainly, that is not the situation in the instant case. Having due regard to the welfare of the child, while maintaining the custody of the child with the mother, the Court below granted certain visitation rights to the father for a period of two days in a week. Such an order cannot be said to have been passed ignoring the welfare of the child. I, therefore, see no ground to interfere with the order passed by the Court below.

The civil revision petition is accordingly dismissed. No order as to costs.