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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN MONGA, J.
XX – Appellant
Versus
YY - Respondent
S.B. Civil Writ Petition No. 9681 of 2023
Decided on : 13-12-2023
Matrimonial Discord - Guardians and Wards Act, 1890 - [Section 25, Section 7, Section 13 of the Guardians and Wards Act, 1890] - The court addressed the visitation rights of the respondent-mother under Section 25 of the Guardians and Wards Act, 1890. The court emphasized the importance of both parents in a child's upbringing and the need for professional intervention to address the children's feelings and concerns. The court directed the petitioner to take the children to a psychologist for counseling and pay a litigation cost to the respondent. The court also highlighted the need to respect the privacy of the parties in matrimonial disputes.
Fact of the Case:
The case involved a dispute over visitation rights of the respondent-mother to meet her two minor sons. The father, the custodian parent, filed a petition against the mother, seeking to challenge an order passed by the Family Court granting visitation rights to the mother. The court made extensive efforts to facilitate reconciliation between the parties, including mediation sessions and interactions with the children. However, the efforts were futile, and the matter was listed for adjudication. The court also addressed the sequence of events from the day of separation of the parents, highlighting the acrimonious circumstances and legal proceedings.
Finding of the Court:
The court found that the children's present hostility towards their mother was influenced by the father's neglect to positively educate and guide them to meet and interact with their mother. The court also noted the father's delaying tactics in the legal proceedings and his possessiveness for the children. The court directed the father to pay a litigation cost to the respondent and take the children to a psychologist for counseling. The court emphasized the need for professional intervention and the importance of both parents in a child's upbringing.
Issues: The issues included the visitation rights of the respondent-mother, the children's reluctance to meet their mother, the acrimonious circumstances between the parents, and the father's delaying tactics in the legal proceedings.
Ratio Decidendi: The court's decision was based on the need for professional intervention to address the children's feelings and concerns, the importance of both parents in a child's upbringing, and the father's neglect to positively educate and guide the children to meet and interact with their mother. The court also emphasized the need to respect the privacy of the parties in matrimonial disputes.
Final Decision: The court directed the petitioner to take the children to a psychologist for counseling, pay a litigation cost to the respondent, and respect the privacy of the parties in matrimonial disputes. The court also highlighted the importance of both parents in a child's upbringing and the need for professional intervention to address the children's feelings and concerns.
JUDGMENT :
1. In the unfortunate and regrettable turn of events, notwithstanding that this Court made extensive efforts to facilitate re-conciliation between the parties, on failure thereof, they are before this Court for resolution of their differences arising out of matrimonial discord. Dispute herein is confined to visitation rights of the respondent-mother to meet her two sons.
2. Petitioner (father), the custodian parent, a practicing advocate of this Court, has filed present petition against the non-custodian parent (mother), a home maker and also working as coordinator in a private school. The Petition arises out of an interim application dated 25.10.2021 filed by the mother before the Family Court seeking visitation rights to meet two minor sons born out of the wedlock. During pendency of said application, learned Family Court passed an order dated 30.05.2023 summoning the children to the court, so as to take further decision thereafter.
3. Before the aforesaid order dated 30.05.2023could be implemented, the father filed instant petition, assailing the same. The said order was stayed vide an interim order dated 18.07.2023 passed by a coordinate Bench of this Court then seized of the matter.
4. In fact, before proceeding further, it would be apposite to reproduce two orders passed by coordinate Bench presided over by my learned Brother Dr Pushpendra Singh Bhati, J. then in seisin of the matter, which are self-speaking and reflect the mediation/reconciliation efforts made by the learned Mediator as well as this Court:
| "Order-18/07/2023 In the opinion of this Court, a proper mediation should be conducted. Upon being asked, learned counsel for both the parties submit that the parties are prepared for mediation session in the presence of children in High Court. List the matter tomorrow i.e. 19.07.2023 before the Mediator Centre attached with this Hon’ble Court. The parties are accordingly directed to appear before the Mediator. The Mediator shall also enable the meeting of the respondent-mother with the children. Let the matter be listed again before this Court on 27.07.2023 alongwith the Mediator’s report. In the meanwhile, the proceeding before the learned Family Court shall be postponed to any date after 01.08.2023. | ||
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| (DR. PUSHPENDRA SINGH BHATI), J” |
| "Order-28/07/2023 1. With the consent of the parties, Dr. Pratishtha Dave, who is learned counsel and Officer of this Court is directed to conduct four counselling/mediation proceedings on each working Friday i.e. 04.08.2023, 11.08.2023, 18.08.2023 and 25.08.2023. 2. It is expected that both the parents cooperate with the learned Mediator in a matured manner, so as to enable the meeting of both the children with mother on each occasion. The terms of such meetings shall be fixed by the learned Mediator. 3. The aforesaid order is being passed looking into the sensitivity of the matter, particularly the involvement of tender aged children. 4. Dr. Pratishtha Dave is further directed to file her report before this Court in a sealed envelop regarding the aforesaid four meetings. 5. List the matters on 04.09.2023. 6. In the meanwhile, the proceedings in question pending before the learned Family Court shall remain suspended. | ||
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| (DR. PUSHPENDRA SINGH BHATI), J.” |
| "Order-04/09/2023 1. This Court had requested Dr. Pratishtha Dave, learned counsel/Mediator to mediate between the parties, as the matter was of extremely sensitive nature involving custody of tender aged children. 2. Dr. Pratishtha Dave, learned counsel/Mediator today was called upon the Court and this Court expressed its appreciation for the services extended by Dr. Pratishtha Dave, as a | ||
The welfare of the child is paramount, requiring both parents to foster a loving relationship and avoid parental alienation.
Custody of child – Court is required to decide issue of visitation on the basis of what is in best interest of child.
A natural parent has a right to visitation with their child unless serious allegations against them are substantiated, prioritizing the child's welfare and emotional bonding.
Visitation rights are critical for the welfare of children in custody disputes, and courts must uphold these rights unless substantial evidence suggests otherwise.
The paramount consideration of the child's welfare and the significance of the love and affection of the maternal grandparents influenced the court's decision to grant visitation rights to the grandm....
The main legal point established in the judgment is the intentional disobedience of court orders and the drastic nature of striking off the defence in cases of repeated violations of visitation right....
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