Lalit Kumar Jatwar vs Smt. Sushma Jatwar

AFR HIGH COURT OF CHHATTISGARH, BILASPUR FAM No. 185 of 2019 • 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 2

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 3

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 4

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 5

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 6

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.

* * * * * 7

(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 8

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 9

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 10

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 11

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 12

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 13

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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