2019 Supreme(Raj) 956

IN THE HIGH COURT OF RAJASTHAN BENCH AT JAIPUR
MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA, JJ.
Gurmeet Singh - Appellant
Versus
Rekha Rathi - Respondent
D.B. Civil Miscellaneous Appeal No. 871 of 2019
Decided On : 31-07-2019

Headnote:

Hindu Marriage Act, 1955 – Sections 9 and 25 – Penal Code, 1860 – Sections 498A and 406 – Constitution of India – Article 39(e) & (f) and 51(c) – Appellant-husband is Lieutenant-Colonel working in Indian Army and is presently posted in operationally active area and respondent-wife is doctor in sociology and is an affluent business woman based She wants to deprive child from fatherly love and affection – Respondent-wife, just before spate of litigation and false allegation, filed complaint, in which compromise took place later again filed false and frivolous F.I.R. with allegation of demand of dowry and cruelty, which was never levelled by her in earlier complaints – Appellant-husband tried to meet her newly born daughter but respondent-wife not allow and made false complaints appellant-husband ultimately filed application in Family Court for grant of visitation rights to enable him and his parents to meet child Family Court rejected the application – Held, Perusal of impugned order indicates that Family Court was reject application of appellant-husband claiming visitation right for himself and his parents mainly on three factors – First child is only one-and-a-half-year old and is unable to speak and understand anything; secondly, abnormal behaviour of appellant-husband as claimed by respondent-wife; and thirdly, that place of posting of appellant-husband is in remote area in Indian Army in Jammu and Kashmir – These factors not justified reason for refusing to grant visitation rights to appellant-father it may be true that child was one-and-a-half-year old when impugned order was passed and now she is more than two years old, therefore by virtue of her age respondent-mother may argue that she is best entitled to claim her custody – But child concerned, she is not only entitled to love and affection of mother but also of father and same time father also equally entitled to her love and affection – Not reason to completely deny visitation rights to appellant-husband, who is after all her father Family Court been unduly influenced by fact of appellant being posted in Indian Army in Jammu and Kashmir region and his parents having gone to Australia. Serving Indian Army cannot be considered as negative factor – Appeal allowed – (Paras: 16 and 18)

Facts of the case:

Appellant-husband is Lieutenant-Colonel working in Indian Army and is presently posted in operationally active area and respondent-wife is doctor in sociology and is an affluent business woman based She wants to deprive child from fatherly love and affection – Respondent-wife, just before spate of litigation and false allegation, filed complaint, in which compromise took place later again filed false and frivolous F.I.R. with allegation of demand of dowry and cruelty, which was never levelled by her in earlier complaints – Appellant-husband tried to meet her newly born daughter but respondent-wife not allow and made false complaints appellant-husband ultimately filed application in Family Court for grant of visitation rights to enable him and his parents to meet child Family Court rejected the application.

Findings of the court:

Perusal of impugned order indicates that Family Court was reject application of appellant-husband claiming visitation right for himself and his parents mainly on three factors – First child is only one-and-a-half-year old and is unable to speak and understand anything; secondly, abnormal behaviour of appellant-husband as claimed by respondent-wife; and thirdly, that place of posting of appellant-husband is in remote area in Indian Army in Jammu and Kashmir – These factors not justified reason for refusing to grant visitation rights to appellant-father it may be true that child was one-and-a-half-year old when impugned order was passed and now she is more than two years old, therefore by virtue of her age respondent-mother may argue that she is best entitled to claim her custody – But child concerned, she is not only entitled to love and affection of mother but also of father and same time father also equally entitled to her love and affection – Not reason to completely deny visitation rights to appellant-husband, who is after all her father Family Court been unduly influenced by fact of appellant being posted in Indian Army in Jammu and Kashmir region and his parents having gone to Australia. Serving Indian Army cannot be considered as negative factor.