Lalit Kumar Jatwar vs Smt. Sushma Jatwar

• Lalit Kumar Jatwar S/o Ramjhul Jatwar Aged About 37 Years R/o Village Ghonghadih, Tahsil Takhatpur, District Bilaspur Chhattisgarh At Present Through Sarvesh Yadav, Bus Stand, Narmadpur, Mainpat, Tahsil Mainpat, District Surguja Chhattisgarh.

---- Appellant

Versus

• Smt. Sushma Jatwar W/o Lalit Kumar Jatwar Aged About 40 Years R/o Krishna Nagar, Raipur, District Raipur Chhattisgarh, At Present R/o Village Kura, Atal Awas House No. 233, Tahsil Dharsiwan, District Raipur Chhattisgarh

---- Respondent

For Appellant : Shri Manoj Paranjpe, Advocate For Respondents : Shri A.D. Kuldeep, Advocate

Proceedings through Video Conferencing

Hon'ble Shri Justice Goutam Bhaduri

Hon'ble Smt. Justice Rajani Dubey

Judgment on Board

Per Goutam Bhaduri, J.

03/02/20 22 Heard.

1. The instant appeal is by father of the child against the judgment dated 10.05.2019 passed by the family Court, Raipur whereby the custody of the child has been ordered to be kept with the mother/ respondent herein. Undisputed facts of this case are that on 16.06.2013 the appellant

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and the respondent were married and out of their wedlock, a child was born on 25.03.2014, he was named as Divyaraj Singh. At the time of birth, the child was suffering with certain ailment. He had a lump on the spinal cord, as such he was not able to discharge his functions including urine etc. properly, therefore, the child was being treated continuously. With respect to the status of the parents, the appellant/ husband is working with the education department as Block Education Officer and the respondent/ wife is working as a Teacher in a school. With passage of time, they were posted at different places of their job. The husband was initially posted at Mainpat and the wife was posted at Bilha both at a distance of more than 200 kms. Subsequently, as per averments, the wife got transferred to Raipur in order to provide proper treatment to the child. During such time, the relation between the parties entered into rough patch and the husband alleged that wife was not treating the child properly whereas the wife denied such allegation of negligence and stated that she is employed as Shiksha Karmi and getting salary of Rs. 25,000-30,000/- and the entire treatment was given to the child and he was looked after by her properly. The dispute in between the parties inflated and while the child was in custody of mother/ respondent, husband/ appellant filed an application for custody of the child which was decided by the impugned order dated 10.05.2019 whereby the father/ appellant was denied the custody, hence this appeal.

2. Learned counsel for the appellant/ father would submit that the relation between the parties though was not cordial but it was not to the extent that they would not see eye to eye to each other. He would further submit that the statements of the wife/ respondent and husband/ appellant, if are read together, it would show that the dispute never aggravated but

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unfortunately, they landed into the custody battle. He further submits that the learned court below should have appreciated the evidence of the wife (respondent) and husband (appellant) and submit that, the presence of father is equally important for proper upbringing of the child, as such, when no dispute existed between the parties the father/ appellant should have been given the custody. He further submits that learned court below while upholding the custody of the child with mother failed to ignore the right of the father even for visiting which otherwise was necessary to take care and for upbringing of the child. He placed his reliance in the case of Yashita Sahu Vs. State of Rajasthan and ors. reported in (2020) 3 SCC 67 , in Gaurav Nagpal Vs. Sumedha Nagpal reported in (2009) 1 SCC 42 and in Ritika Sharan Vs. Sujoy Ghosh reported in 2020 SCC Online SC 878 and would submit that the right of the father should have been upheld to have custody of the child.

3. Per contra, learned counsel for the respondent/ wife would submit that the order of the learned court below is well merited and it is stated that only the mother can take care of the child properly. He further submits that since the child was suffering with critical disease as such to take care of the child, care and company of mother was important and the father got visiting rights as directed by the learned court below.

4. We have heard learned counsel for the parties at length.

Perused the evidence and the documents on record.

5. The existence of the child suffering with a critical disease by birth appears to be apparent. Reading of the statements of father/ appellant and mother/ respondent both would show that to get the child treated, both

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mother and father visited different specialist doctors/ experts over a period of time, but eventually a little improvement was shown. According to the statements of both the mother and father, the child suffers from spina bifida, wherein in order to pass urine, he needs external support i.e. pressing of abdomen and also for walking he needs support. Both the appellant and respondent claim that they would discharge their responsibilities and will serve the child better.

6. In cases of custody of child, the society values are riddled with contradiction. The courts have however never missed the finer point of paramount issue of welfare of the child. The Hon'ble Supreme Court has reiterated time and again, that the welfare of the child would be of paramount consideration. In a judgment Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and Others reported in (2019) 7 SCC 42, it has been held that the court while deciding custody cases of the child, it is not bound by the mere legal right of the parents or guardians. It held that though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning the custody of the minor child. Therefore, the paramount consideration should be the interest and welfare of the child. The Hon'ble Supreme court in the aforesaid judgment reiterated the view taken in Nil Ratan Kundu Vs. Abhijit Kundu reported in (2008) 9 SCC 413 wherein the court held that paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favorable surroundings.

7. Further the Supreme court in the case of M.K. Hari Govindan Vs. A.R. Rajaram reported in 36 2003 onLine Mad 48 : AIR Mad 315

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reiterated the view taken that custody cases of child cannot be decided on documents, oral evidence or precedents without reference to "human touch".

It held that "human touch" is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience. Further in the case of Gaurav Nagpal Vs. Sumedha Nagpal reported in (2009) 1 SCC 42 at paras 30, 32, 36, 37, 40, 50 and 51 the supreme court has held as under:-

"30. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ-Court is `welfare of the child'.

32. In Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J. observed;

The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word `welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded.

36. The Guardians Act, consolidates and amends the law relating to guardians and wards. Section 4 of the said Act defines "minor" as a person who has not attained the age of majority. "Guardian" means a person having the care of the person of a minor or of his property, or of both his person and property. "Ward" is defined as a minor for whose person or property or both, there is a guardian. Chapter II (Sections 5 to 19 of Guardians Act) relates to appointment and declaration of guardians. Section 7 thereof deals with `power of the

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Court to make order as to guardianship' and reads as under:

" 7. Power of the Court to make order as to guardianship.- (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made--

(a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.

37. Section 8 of the Guardians Act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced;

"17. Matters to be considered by the Court in appointing guardian.- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

* * * * *

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(5) The Court shall not appoint or declare any person to be a guardian against his will. "

40. Section 6 enacts as to who can be said to be a natural guardian.

It reads thus;

"6. Natural guardians of a Hindu Minor.-- The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--

(a) in the case of a boy or an unmarried girl--the father, and after him, the mother;

Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father.

(c) in the case of a married girl--the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section --

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by

becoming a hermit (vanaprastha) or an ascetic (yati or

sanyasi).

Explanation.--In this section, the expressions "father"

and "mother" do not include a step-father and a step-

mother. "

50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli's case (supra), the

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Court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

51. The word `welfare' used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases. "

Therefore it is only the paramount consideration of the child that would be the deciding factor.

8. Reverting to the statement of the parties in this case, according to the father/ appellant he states that the dispute arose when he was posted at Mainpat and Mainpat, being a remote area, the facility of treatment was not available. He stated that while he was residing with the child he used to support the child to discharge the urine in the morning, used to make him ready and thereafter he used to go to his work. As compared to that the mother/ respondent who is also doing job used to take the child with her at her working place. He further admitted that till date the mother while doing the job of teacher used to take the child along with her. The statement of mother would show that she is earning about Rs. 30,000/- and appears to be stressed about the fact that since nobody is there to take care of the child she used to take him along with her. Further statement would show that

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initially when the child was found to be suffering with some ailment by birth, both the mother and father visited different doctors and the child was found to be suffering by Spina bifida. While she was posted at some school at Dharsiva, she has not opposed any effort by father to get the child treated.

She further stated that the child admits to be ailing and as and when some recovery is found he would be admitted in the hospital. The mother further contended that the appellant/ father may take care of the child but the child would need the company of mother for a better care. It is stated in order to discharge the urine it appears that abdomen is required to be pressed, she further stated that she is ready and willing to go with the appellant/ father to get the child treated anywhere and will not deny to accompany.

9. The existing factors would lead to show that the father is working at a higher post of Block Education Officer who has to discharge the work in the field, whereas the mother, though is also in the job of Teaching and in order to take care of the child she takes the child along with her even to the school to extend psychical support. Therefore, the father though is also a well-wisher and wants to take care of the child but the degree of care as being extended by the mother is higher to hold the sway to have the custody of the child especially considering the nature of ailment with which the child is suffering from birth. The nature of job and care as extended by mother is more vital. It is obvious that when the father is working at field moving from one place to other, how it is expected that the father would be able to give the company to extend the physical support to the child ? On the other hand, mother would be able to contribute more physical support to the ailing child with some cheer. Therefore, the finding of the family court that the welfare of the child would be better in degree in the custody of the mother appears to

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be justified which does not require any interference.

10. Now coming back to the visiting rights of father, the learned Family Court has ordered that father can get the company of child for some time after notice to the mother/ wife, appears to be impracticable to work out.

The visiting rights which is granted by the family court without any particular guidelines or directions would be vague. The visitation rights, was considered by the Supreme court in the case of Yashita Sahu Vs. State of Rajasthan and Ors. reported in (2020) 3 SCC 67 wherein while adjudicating likewise issue, it was observed that it is always the child who is the victim in the custody battle. It further held in the fight of egos and increasing acrimonious battles and litigations between two spouses, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to get the custody of the child. The court observed that the child of tender years requires the love, affection, company, protection of both the parents. It further held that it is natural requirement of the child which is his/ her basic human right just because the parents are at war with each other, it does not mean the child should deny the care, affection, love or protection of any one of the two spouse. It further held that a child is not an inanimate object which can be tossed from one parent to the other and after every separation, every reunion may have a traumatic and psychosomatic impact on the child.

11. The Supreme Court in case supra further held even after the custody is given to one parent, the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied

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contact with the child. Evaluating the evidence in this case, it do not show any extreme circumstances whereby one parent for all practical purposes can be denied to meet the child. The evidence which is on record would show that both the wife and husband though are living separately and the custody of the child is with wife no allegations have been made against each other by husband and wife, therefore the reasons for both the husband and wife residing separately is not clear or has surfaced. The Supreme Court in the case supra further observed that the concept of "visitation rights" is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. It held that the child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.

12. In addition to "visitation rights", the court observed that the "contact rights" is also important for the development of the child specially in cases were both the parents live in different places the concept of contact rights in the modern age would be contact by telephone, e-mail or in fact we feel the best system of contact, if available between the parties should be video calling. It observed that with the increasing availability of internet, and the courts dealing with the issue of custody of child must ensure the parent who has denied the custody of the child should be able to talk to his/ her child as often as possible. It held that the communication will help in maintaining and improving the bond between the child and the parent who is denied the custody. If that bond is maintained, the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose was held that the court cannot provide one happy home with two

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parents to the child then let the child have the benefit of two happy homes with one parent each.

13. In a recent judgment rendered in Ritika Sharan Vs. Sujoy Ghosh reported in 2020 SCC OnLine SC 878, the Supreme Court has held that a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are best served by ensuring that both the parents have a presence in his/her upbringing. Therefore, following the principles laid down in in the case of Yashita Sahu Vs. State of Rajasthan and Ors. reported in (2020) 3 SCC 67 and in the case of Ritika Sharan Vs. Sujoy Ghosh reported in 2020 SCC OnLine SC 878, we hereby order to facilitate the grant of visitation and contact right to father. The following arrangement shall be drawn by both the appellant and the respondent as father and mother:-

• The appellant/ father would be able to engage with the child on a suitable video conferencing platform for one hour every

Saturday and Sunday and 5- 10 minutes on other days.

• Both the appellant/ husband and the respondent/ mother in order to facilitate the video conferencing in between shall procure smart phones which would facilitate the inter-se video

calling.

• During long holidays/ vacation covering more than 2 weeks the child will be allowed to be in company of the father for a period

of 7 days and the mother can also accompany them.

• The period shall be fixed by the father after due intimation to

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the mother and she will permit the child to go with the father for the aforesaid period and the mother may also accompany

them.

• Every month preferably on 2nd Saturday and Sunday the mother shall allow the child to visit his father or father may take the child in his company and the mother may also accompany

and leave him back in the evening of such day.

• During festivals like Dusshera, Diwali, Holi, the father may join the company of the child at the place of the mother and spend

the festival days with the child along with the mother.

11. With the aforesaid direction, the appeal is disposed of.

Sd/- Sd/-

(Goutam Bhaduri) (Rajani Dubey )

Judge Judge Jyoti

Headnotes

FAM 185 of 2019

1. In custody battle the other parent will have a visitation and contact right.

2. To facilitate contact right both parents should procure smart phone for video calling.

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