1 wp-8720-11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO.8720 OF 2011 K.N.Krishnamurthy ..Petitioner Vs Kavita Krishnamurthy ..Respondent -- Mr.Shilpa Joshi, for petitioner. Mr.R.T.Lalwani, for respondent. -- CORAM : R.G.KETKAR, J. DATE : 21 st OCTOBER, 2011 P.C.: Heard Ms.Shilpa Joshi, learned counsel for the petitioner and Mr.R.T.Lalwani, learned counsel for the respondent. I have also interviewed the child by name Sidharth in my chamber. I have also interacted with the petitioner and the respondent in my chamber. 2] Rule. Learned counsel for the respondent waives service. By consent of the parties, Rule is made returnable forthwith and is heard finally. 2 wp-8720-11.odt 3] By this petition, the petitioner has challenged the judgment and order dated 17 th October, 2011 passed by the learned Judge of the Family Court, Bandra, Mumbai below Exhibit 89 in Interim Application No.332 of 2011 in Petition No.A-1464 of 2008. By that order, the Family Court rejected that application made by the petitioner on 17 th September, 2011 for Diwali vacation access commencing from 23 rd October, 2011 to 31 st October, 2011. The relevant and material facts for the purpose of disposal of this petition briefly stated are as under : 4] On 4 th November, 1999, the petitioner and the respondent were married. On 15 th January, 2003 son Siddharth was born. It appears that the dispute and differences arose between the parties and on 26 th May, 2008, the respondent filed petition for divorce on the ground of cruelty in the Family Court. The petitioner also filed petition for permanent custody of their son. These proceedings are proceeding is pending in the Family Court. It is the case of the petitioner that in the proceedings filed by the respondent for divorce, on 2 nd December, 2008, consent terms for interim access of son were entered into between the parties. The petitioner was given interim access to 3 wp-8720-11.odt meet minor son Siddharth from 6.30 pm. to 8.30 pm. on every Monday, Wednesday and Friday in the compound of the building. The access arrangement was to start from 3 rd December, 2008. The consent terms provided that the petitioner will have access in the compound of the building and he will not carry Siddharth outside said premises. Subsequently, the petitioner filed application at exhibit 11 claiming overnight access on all weekends; claiming access for Christmas vacation from 20 th December, 2008 to 9 th January, 2009 and for access on 15 th January,2009 for birthday of Siddharth. The learned Judge of the Family Court considered the arguments only in respect of the prayer for overnight access on all weekends and the prayer for Christmas vacation became infructuous as the Christmas vacation was over. Equally since the access on birthday of Siddharth was given to the petitioner, the said prayer was also not considered. After hearing learned counsel for the parties, by order dated 12 th March, 2009, the learned Judge of the Family Court partly allowed the application. The respondent was directed to give overnight access on 2 nd Saturday every month. 5] Subsequently, the petitioner filed application exhibit 27 claiming 4 wp-8720-11.odt access of Siddhardh during the Summer Vacation commencing from 1 st May, 2009. The said prayer was opposed by the respondent herein and it was submitted that the petitioner had physically assaulted her on 19 th January, 2009 and therefore, the child was unhappy. It was also submitted that the petitioner is ill tempered and abusive. He had neglected basic needs of the child. Since the child was interested in Swimming and Basket Ball Coaching, it was contended that summer vacation access would not be in the interest of child. After considering the submissions made by learned counsel for the parties, by order dated 27 th April, 2009, the learned Judge of the Family Court partly allowed the application. The petitioner was given overnight access of Siddharth on any 15 days during the summer vacation commencing from 1 st May, 2009. 6] It seems that the petitioner applied for access during Diwali vacation and by order dated 7 th October, 2009, the access was given to the petitioner during Diwali vacation from 12 th October, 2009 to 16 th October, 2009. The respondent filed application at exhibit 41 for cancellation of Diwali vacation on the ground that the petitioner came to her place and pushed the child and used abusive language and 5 wp-8720-11.odt also raised hands on her mother and therefore, the access should not be given to the petitioner. The petitioner resisted that application by filing reply exhibit 43 and denied the occurrence of incident. After hearing learned counsel for the parties, by order dated 14 th October, 2009, the Family Court rejected the application for cancellation of access. In that order, the learned Judge recorded that the child was produced before the Counsellor immediately as he was already present with respondent. The child was interviewed by the Counsellor. Even, learned Judge interviewed the child so as to satisfy himself about the allegations and counter allegations made by the parties. He observed that the child was not under stress or strain. If at all any such incident as stated by the respondent has occurred, the child would not have shown signs of mental tension. The learned Judge also recorded that the on the earlier occasion the parties filed consent terms about access of son Siddharth on Monday, Wednesday and Friday in the compound of the respondent’s building and that subsequently on the application made by the petitioner for overnight access the same was granted to the petitioner on second Saturday of every month. He, therefore, observed that there was good rapport between the child and the petitioner – father. 6 wp-8720-11.odt On these among other grounds, the learned Judge granted access from 15 th October,2009 to 18 th October, 2009 as on 12 th October, 2009 the access was not given and on the same day the respondent gave application for cancellation of access in Diwali vacation pursuant to order dated 7 th October, 2009. The learned Judge on his own modified the order of access from 15 th October, 2009 to 18 th October, 2009 instead of 12 th October, 2009 to 16 th October, 2009. 7] Subsequently, in respect of birthday and Christmas access,the parties entered into the consent terms on 5 th December, 2009 whereunder, the petitioner was given Christmas access from 8 th December, 2009 at 9 am to 25 th December, 2009 12 noon. The petitioner was also given birthday access and regular access on 16 th January, 2010 between 5.30 pm and 8.30 pm. 8] Subsequently, the parties entered into the consent terms for summer vacation access. The petitioner was given said access from 1 st May, 2010 to 15 th May, 2010 and the parties mutually agreed for arrangement for dropping the son as also returning of son. Thereafter, the parties entered into the consent terms in for Diwali 7 wp-8720-11.odt vacation access whereunder, the petitioner was given access from 5 th November, 2010 to 9 th November, 2010. The parties also agreed for the arrangement for implementation of the consent terms. The parties thereafter entered into the consent terms for Christmas vacation access and birthday access on 16 th December, 2010 whereunder, the petitioner was given Christmas vacation access from 29 th December, 2010 till 3 rd January, 2011. It was agreed between the parties that the petitioner will avail birthday access either on 15 th January, 2011 or 16 th January, 2011. The parties mutually agreed arrangement for implementing the said consent terms. The parties, thereafter, entered into the consent terms for term vacation access as the child was on vacation from 23 th March, 2011 to 4 th May, 2011. The said consent terms were entered into on 3 rd April, 2011. Subsequently, the parties entered into the consent terms on 13 th April, 2011 whereunder, the petitioner was given access from 3 rd May, 2011 to 18 th May, 2011 and the parties agreed for arrangement for implementing the said consent terms. 9] It is the case of the petitioner that this arrangement was worked out satisfactorily as per the co-operation extended by both the sides. 8 wp-8720-11.odt However, subsequently, on account of the alleged incident on 6 th July, 2011, the respondent refused to give access from 30 th July, 2011. The petitioner therefore filed the present application on 27 th September, 2011 for Diwali vacation access. 10] The respondent filed her reply. It is the case of the respondent that though the petitioner was given access on every Monday, Wednesday and Friday, he came on 5 th July, 2011 being Tuesday which was not the access day. He again came on the next day i.e.on 16 th July, 2011 and he assaulted the respondent and even the child. It is her case that the petitioner also threatened to kill and in that regard, the respondent registered First Information Report under Sections 323, 506(II) Indian Penal Code, 1860. After this incident, the child was frightened. It is her case that the petitioner is a aggressive and violent person. Even though the regular access was given to him as per the consent terms or some time as per the orders of the Court, he used to come to her residence almost everyday. He was harassing the child in the compound of the respondent’s Society. It not only caused nuisance to her but also to her old parents. Due to the behaviour of the petitioner, the residents 9 wp-8720-11.odt of the Society objected and gave notice to her. The said notice dated 22 nd July, 2011 is also produced on record. On the basis of this assertions, the application made by the petitioner on 27 th September, 2011 for Diwali vacation access for the period commencing from 23 rd October, 2011 to 31 st October, 2011 was opposed. 11] The learned Judge of the Family Court interviewed the child and during the course of the interview, the child showed his unwillingness to go or stay with the petitioner - father during Diwali vacations. He was, therefore, of the view that it will not be desirable to direct the respondent to give access to the petitioner. He accordingly rejected the application. It is against this order the petitioner has filed this petition. 12] In support of this petition, Ms.Joshi invited my attention to the earlier access arrangement that was between the parties. She submitted that till the incident of 6 th July, 2011 the access arrangement was worked out satisfactorily. Initially, the petitioner was given limited access in the sense he was allowed to meet the son in the compound of the building of respondent’s Society from 10 wp-8720-11.odt 6.30 pm to 8 pm on every Monday, Wednesday and Friday. Subsequently, by order dated 12 th March, 2009, he was given overnight access and finally he was also given access during the Diwali vacation as also Christmas vacation. In so far as the incident of 6 th July, 2011 is concerned, she submitted that the F.I.R. was registered as late as on 28 th September, 2011. On the day of incident, she had lodged N.C. complaint whereunder the respondent alleged that the petitioner abused her parents and assaulted them. He further threatened them that he will see to them. However, on that day, she did not allege that he threatened to kill her. She therefore submitted that the alleged incident of 6 th July, 2011 is concocted the story solely with a view to denying the petitioner Diwali vacation access. She further submitted that since the petitioner was denied access from 30 th July, 2011 onwards, the petitioner has filed Contempt Petition proceeding against the respondent. Even the respondent has filed application for cancellation of access and those proceedings are pending. She further submitted that despite the alleged incident dated 6 th July, 2011, he was given access on 8 th July 2011 which falsifies the incident of 6 th July, 2011. 11 wp-8720-11.odt 13] On the other hand, Mr.Lalwani submitted that normally the other spouse does not wish to give access of the child. However, in the instant case, it would be evident that the respondent on few occasions agreed to give access by entering into consent and also complied the orders passed by the Family Court. No case was made out by the petitioner about violation of either consent terms or the orders of the Court. The respondent co-operated as per the consent terms or complied orders passed by the Court from time to time. This clearly indicates that the respondent did not oppose the access arrangement made between the parties. However, the petitioner’s such conduct has to be considered while considering the application made by the petitioner for Diwali vacation access. He submitted that the petitioner has a history of physical and mental abuses to the respondent wife and to child. He has indulged in the anti-social activities and his behavior is also aggressive. Though he was given access on every Monday, Wednesday and Friday, he used to visit the respondent’s building everyday and was harassing the child. Even, the members of the Society made complaint against his behavior and therefore, considering the conduct of the petitioner and in the interest and welfare of the child, he should not be given Diwali 12 wp-8720-11.odt vacation access. 14] He further submitted that the police Authorities did not record the complaint as per the wife’s narration. In fact the police authorities recorded N.C. Complaint on 6 th July, 2011. Since the complaint was not registered as per her version, she addressed five letters to the police authorities for properly register her complaint. The delay in lodging the F.I.R. on 28 th September, 2011 is not attributable to her and it is attributable to the police authorities. It is only with a view to covering up their lapses in the registering the F.I.R., the police authorities have recorded in respondent’s statement that she was frightened on that day i.e.6 th July, 2011 and she forgot to narrate about the threats given by the petitioner to kill her. According to him, the police authorities have covered up their lapses while recording her complaint on 6 th July, 2011 and therefore, no capital can be made by the petitioner firstly, on the ground that the F.I.R. was belatedly lodged and secondly, that she made out a case of threat to kill her in the F.I.R. after almost two months. He also invited my attention to various photographs to substantiate that the petitioner has assaulted the child as also the respondent. Even in the past the petitioner had 13 wp-8720-11.odt seriously injured the respondent and therefore, he submitted that the learned Judge of the Family Court rightly rejected the application filed by the petitioner and no case is made out for interference. 15] Mr.Lalwani also invited my attention to paragraph 22 of the present petition wherein, the petitioner asserted that on 6 th July, 2011 the petitioner waited for Siddharth for a long time in the compound of the building and since the child did not came, he went to police station to lodge complaint as he was apprehensive about the allegations that would be leveled against him by the respondent and her family members. This shows the guilty conscious of the petitioner. 16] I have considered the rival submissions made by learned counsel for the parties. I have also interviewed the child and interacted with his parents in my Chamber. As noted earlier, the parties have entered into the consent terms on some occasions and on some occasions order were passed by the Family Court giving visitation rights and subsequently, has given overnight access and also access during the Diwali and Christmas vacations. This 14 wp-8720-11.odt arrangement was going on smoothly and accordingly, in fact, last access given to the petitioner was in the month of May, 2011. It has to be noted here that the respondent made application for cancellation of Diwali vacation access at exhibit 41. The said application was rejected by the learned Judge of the Family Court on 14 th October, 2009. In that application, the respondent complained that the petitioner pushed the child and abused and raised hands on her mother and therefore, access should not be given to the petitioner. The child was produced before the Counsellor and he was interviewed by the Counsellor. Even, the learned Judge interviewed the child. The learned Judge recorded that there is good rapport between the child and his father and after interviewing the child, he did not find that the child is shocked due to alleged untoward incident took placed on 6 th October, 2009. The respondent took out application on 12 th October, 2009 for cancellation of Diwali vacation access as also for recalling order dated 7 th October, 2009 on the ground that the petitioner abused her mother and also pushed the child and raised hands on her mother. After interviewing the the child, the learned Judge recorded that the child did not complained against his father and therefore, he declined to cancel the order 15 wp-8720-11.odt dated 7 th October, 2009 of Diwali vacation access. 17] It is not in dispute that pursuant to the consent terms dated 3 rd December, 2009, the petitioner availed of birthday and Christmas vacation access. It is also not in dispute that during the summer vacation of 2010, the parties entered into the consent terms and those consent terms were acted upon. Likewise, they entered into consent terms for Diwali vacation access also Christmas vacation access. Even, he consent terms were entered into for vacation for the period from 23 rd March, 2011 to 4 th April, 2011 and finally during the summer vacation of 2011, by consent of the parties, the petitioner availed of the access from 3 rd May, 2011 to 18 th May, 2011. 18] It is also the case of the petitioner that the respondent had given her profile on Bharat Matrimonial.com and pursuant to her profile there was one proposal from Dr.Vighnesh Iyer and therefore, the respondent has employed pressurising tactics so that the petitioner agrees for divorce and so that the respondent will be in a position to remarry. The respondent is therefore opposing Diwali vacation access. Mr.Lalwani refuted these contentions and 16 wp-8720-11.odt contended that the document produced to show registration on Bharat Matrimonial.com is a fabricated document. He submitted that the petitioner has hacked the e-mail. He further submitted that the respondent has not given any profile to Bharat Matrimonial.com. 19] Since there is word against word, at this stage, I do not propose to go into this controversy. I have already noted that the petitioner has filed Contempt proceeding and the respondent has also filed application for cancellation of access in the Family Court and those proceedings are pending. For the time being, I am confining myself as to whether the petitioner is entitled to Diwali vacation access. The observations made herein are tentative observations only for the purpose of considering the said request. 20] During the course of interview, the only reason given by Siddharth was that he does not want to stay with his father. The age of child is 8 years and 9 months approximately. Considering the background of the case as also the fact that the F.I.R. is lodged by the respondent wherein, investigation is pending, I do not propose to make any comment about the incident dated 6 th July, 2011 which may 17 wp-8720-11.odt influence the investigating authorities. After taking interview of the child and after interacting with the parents of the child, I find that the learned Judge was not justified in rejecting the application. In my opinion, having regard to background of the case, the petitioner is entitled to avail Diwali vacation access. The petitioner has agreed that he will take leave during this period and will take the child out of Mumbai. 21] Mr.Lalwani submitted that in the past vacations, the access was shared by both petitioner and respondent. He submitted that without prejudice to the rights and contentions of the parties in the pending proceedings, the petitioner may be given Diwali vacation access commencing from 28 th October, 2011 till 31 st October, 2011. He submitted that the petitioner may be permitted to collect the child on 28 th October, 2011 at 10.00 am and shall return the child at 7.00 pm on 31 st October, 2011. He further submitted that the respondent will give him overnight access on 5 th November, 2011 and on 19 th November, 2011. This arrangement is worked out to compensate the access missed out by the petitioner. 18 wp-8720-11.odt 22] It is made clear that this part of order is passed by consent of the parties and the learned Judge of the Family Court will consider the pending proceedings without being influenced by consent arrangement for sharing Diwali vacation access. 23] Writ Petition is, therefore, disposed of in the following terms: (a) The petitioner shall pick up the child on 28 th October, 2011 at 10.00 am. from the respondent and shall return the child at 7.00 pm. On 31 st October, 2011. (b) The petitioner will be given overnight access on 5 th November, 2011 and on 19 th November, 2011 so as to compensate his missed out access. (c) It is made clear that the observations made herein are only for the purpose of deciding the application made by the petitioner for Diwali vacation access and the learned Judge of the Family Court shall decide the pending proceedings without being influenced by the observations made in this order. 19 wp-8720-11.odt (d) Rule is partly made absolute. In the circumstances of the case, there shall be no order as to costs. [R.G.KETKAR, J.]