The Delhi High Court in its order dated September 15, 2023 observed how a child becomes the worst victim due to warring parents embroiled in matrimonial disputes.
The High Court was hearing an appeal made by the father after the wife did not comply with the child visitation order as passed by the Family Court. In fact, the Family Court too, left the meeting between father and minor son, to the wishes of the latter.
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Case:
Parties got married in December 2004 according to Hindu rites and customs. After many years into the marriage, the couple adopted a male child, who is 13-years of age as on date.
Parties got separated in the 2021 and since then the son is under exclusive custody of the mother.
The father then filed the Petition under Section 9 of the Guardians and Wards Act, 1890 seeking custody of the minor son.
In August 2022, the Family Court permitted the appellant/father to pick up the child on every Sunday at 12:00 noon from the house of the respondent/wife and drop him back at around 02:00 P.M. on the same day.
Since the wife failed to comply with these orders, facilitating meeting between father and the son, the former had to file yet another application under Section 151 of CPC, 1908 requesting court that the child may be directed to be brought to the Children’s Room for meeting him.
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Submissions by Father
The father pleaded that was no effective compliance of the August 2022 order granting visitation rights on every Sunday from 12:00 Noon to 02:00 P.M. which is essentially increasing the gap between the appellant/father and his son, which is not in his welfare. Therefore, to facilitate interactions it was requested that the child be produced in the children’s Room for effective and meaningful meetings.
Defense by Mother
The respondent, on the other hand, had claimed that she never obstructed the visitation rights, but the son is now aged about 13 years and has extreme reluctance in meeting with the appellant/father. The child is grown up enough to exercise his own discretion and there is no way that she can compel the child to meet the appellant/father. The child himself has refused to interact with the appellant/father and she has no role to play if the child is not willing to go with the appellant/father on every Sunday as directed by Family Court.
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Family Court, Saket
In May 2023, the learned Principal Judge, Family Court, observed that he had interacted with the child in the Chamber who is aged about 13 years and is studying in Class-VIII. The learned Principal Judge further observed that the child was having sufficient maturity to decide the meeting with the appellant/father and found that there existed no ground to direct the production of the child in the Children’s Room for meeting and accordingly, the Application under Section 151 of CPC, 1908 of the appellant/father was dismissed.
Aggrieved by this dismissal order, the appellant/father approached High Court.
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Delhi High Court
At the outset, the division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed that a minor’s age and the surrounding circumstances of the period of separation from a parent are relevant while considering his or her ‘intelligent preference’.
Referring to Section17(3) of the Guardians and Wards Act, 1890, the Delhi High Court noted that while appointing a guardian, court may consider preference of a minor in case he or she is old enough to form an “intelligent preference”.
However, the bench also ruled that the provision is “couched in directory language” and the court cannot always be dictated by what the child states to be his preference. The bench said:
It is a common knowledge that where acrimony permeates in the relationship between the husband and the wife, the worst victim is the child who is directly or indirectly impacted or affected by the acrimonious relationship and is also tutored against the separated parent.
While considering the intelligent preference of such a child, not only the age of the child is material but also the surrounding circumstances of the period of separation and the reasons stated for disinclination to meet the appellant/father also assume relevance.
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The High Court also noted that the child was 11-years-old until both his parents resided together. The bench observed that due to growing differences between the parents during these two years, the child has also been impacted.
The High Court added that it is not in the best interest and welfare of the child if he gets deprived of love, affection and guidance of his father, merely due to differences between his parents. The Court said:
This is more so when the parties and the child were together till about two years back. The father is not a stranger but is well known to the child having been together for eleven years.
Two years time gap cannot be considered sufficient for total alienation for the child to turn totally averse to even meet the father.
The role of mother to help forge and restore the lost/ diminished affection between the father and the child assumes greater significance.
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We hereby direct that the child be produced to the Children’s Room in the Court Complex, Saket Courts, New Delhi on every first and third Saturday from 03:00 P.M. to 05:00 P.M. for interaction with the appellant/father.
Further, the meetings be facilitated in the Children’s Room in the presence of the Counsellor.
In case, the child is unable to come on any Saturday or it is a Court’s holiday on the said Saturday, the meeting shall be held on the next working Saturday, or the same may be compensated on any other day, subject to the convenience of both the parties.
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