Sivagowri Petitioner v. R. Swaminathan

Prayer: Petition filed under Article 227 of the Constitution of India against the order of allowing I.A No. 1420 of 2008 in O.P No. 3556 of 2007 on the file of I Additional Family Court, Chennai dated 14.11.2008

ORDER

The civil revision petitioner/respondent/wife has filed this civil revision petition as against the order dated 14.11.2008 in I.A No. 1420 of 2008 in O.P No. 3556 of 2007 passed by the I Additional Judge, Family Court, Chennai in directing the revision petitioner/wife to hand over the child to the respondent/petitioner/husband on every Sunday at 9.00 a.m at a common place agreed to by both and the respondent/petitioner/husband is directed to hand over the child to the petitioner/respondent/wife on the same day at 5.00 p.m at the same place etc.

2. The learned counsel for the revision petitioner/wife submits that the trial Court ought to have seen that the child was not willing to even see or be with the respondent/husband and expressed her desire in clear terms and further that the trial Court should have atleast received the report from the officers in the Family Counselling Centre about the state of the child and the impact of such exposure to the respondent/husband before modifying and enlarging the visitation outside the premises of the Court and without the supervision of any one and moreover, when the revision petitioner has filed a common counter to the IAs in O.P No. 3556 of 2008, the trial Court has come to the wrong conclusion that counter has not been filed and that it is wrong to say that it was with the consent of both sides that the child was interacted for more than half an hour and there was no admission of any living in joint family by either parties or the child as the parties did not live in joint family and that the impugned order has been passed without considering the implications of impact of such routine visit every Sunday from 9.00 a.m to 5.00 p.m

3. The further contention of the learned counsel for the revision petitioner is that the trial Court has not taken note of the fact that the child has been traumatized by the respondent/husband in her previous School and the present School to which the respondent/husband goes and embarrasses the child and when the injunction application restraining the husband from going to School is pending, the trial Court without disposing the said application has taken up the I.A No. 1420 of 2008 and passed a hasty order and that the trial Court has failed to appreciate the sentiments expressed not merely by the petitioner/wife but also the child which categorically said that she is disturbed at School by the respondent/husband and to hand over the child at 9.00 a.m on every Sunday would mean that she has to get up early even on Sundays, cannot attend any extracurricular classes such as dancing and slokam to which she has been taken leisurely on Sundays and she cannot cope up with the home work given in School for week ends and that the trial Court has not taken note of the fact that due to the constant threats and disturbance that was caused to the child in the Vidyodaya School, the child was shifted to the Chettinad Vidyashram and that the revision petitioner who is a Masters Degree holder in Computer Sciences has taken up the teaching assignment in the Chettinad Vidyashram School and that the respondent/husband has been encouraged to the inconvenience and set back of the child and the impugned order has only made the gap widen with a sense of victory and loss between the parties.

4. It is to be noted that the respondent/husband has filed O.P No. 3556 of 2007 against the revision petitioner/wife praying for the relief of dissolution of marriage between them, that has taken place on 14.06.1998 under Section 13(1)(ia) and Section 26 of the Hindu Marriage Act and the same is pending on the file of I Additional Family Court at Chennai. The revision petitioner/wife has filed F.C.O.P No. 3658 of 2007 against the respondent/husband praying for the relief of restitution of conjugal rights under Section 9 of the Hindu Marriage Act and the same is pending on the file of Principal Judge, Family Court, Chennai.

5. It transpires from the paragraph 2 of the order passed in I.A No. 1420 of 2008 dated 14.11.2008 by the trial Court that earlier on 19.05.2008 a direction has been issued to the revision petitioner/wife to produce the child on every Thursday once in a week at about 3.30 p.m at Children Centre at Family Court, Chennai so that the respondent/husband can visit the child between 3.30 p.m to 5.30 p.m on condition that the order will be effective only until further orders.

6. It is to be noted that a child is a person within the meaning of Article 21 of the Constitution. Admittedly, a child has a right to its life has guaranteed by Article 21 of the Constitution. As a matter of fact, a minor child cannot express his/her preferences. The paramountcy to the welfare of the child is the governing factor. It cannot be gainsaid that the welfare of the child is not to be measured by the physical comfort provided by a party, by spending money on the child but the Court must consider the moral and spiritual welfare of the child too besides looking into the other requirements of the child. The child's welfare comes first, last and all the time, in the considered opinion of this Court. A Court of Law will have to take into account all facts and circumstances of a given case after keeping both psychological and physical and other needs of a minor child and not the legal right of a particular or other party.

7. One cannot ignore an important fact that a proceeding in regard to the grant of interim custody of a minor child is a proceeding indeed for the welfare of a child and not a litigation between the parties, in the considered opinion of this Court and viewed in this perspective, a direction issued by the trial Court ordering the revision petitioner/wife to hand over the child to the respondent/husband on every Sunday at 9.00 a.m at a common place agreed to by both and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 5.00 p.m at the same place etc., is not for the welfare of the child. However, the visiting right of the respondent/husband (as a father of the child being an interested person) cannot be totally curtailed and therefore, this Court, looking into the facts and appreciating the social conditions and other natural conditions and on overall assessment of the cumulative circumstances of the case and considering the interest of the welfare of the child, in modification of the order passed by the trial Court as an equitable remedy, directs the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future.

With the above direction, this Civil Revision Petition is disposed of, leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is closed.