IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.07.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE B.RAJENDRAN O.S.A.NO.215 OF 2011 Bindu ... Appellant Vs. C.V.Ananth Padmanabhan ... Respondent Original Side Appeal is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 24.06.2011 made in Company Application No.789 of 2010 in O.P.no.144 of 2008 on the file of this Court. For Appellant : Mr.R.Thiagarajan For Respondent : Mr.P.V.Balasubramanian JUDGMENT R.BANUMATHI,J Being aggrieved by the modification of the earlier order dated 22.12.2010 in respect of visitation rights allowed to the Respondent- father, Appellant-mother of the children has come forward with this appeal. 2. Respondent filed Petition in O.P.No.144 of 2008 to appoint him as guardian of their minor children Anamika (Date of Birth 25.02.1999) and Riyaan (Date of Birth 17.12.2003). In the Petition, number of interim orders came to be passed which may not be of much relevance for the limited scope of the question involved in this appeal. Suffice it to note that in the earlier order in O.S.A.No.268 of 2008 dated 07.8.2008, the Division Bench ordered that the main O.P. itself be disposed of within a period of three months from the date of the order and directed the parties to co-operate for early disposal of the matter. 3. When the children were located in Hyderabad, on application filed by the Respondent-father, by an order dated 11.03.2010, Justice https://hcservices.ecourts.gov.in/hcservices/ V.Ramasubramanian,J interalia passed the order permitting the Respondent-father to take interim custody on the evening of Friday preceding the second Saturday of a month and bring them to Chennai and hand over the custody of the children on the following Sunday before 8.00 p.m. at Hyderabad. 4. Thereafter trial commenced on 05.02.2010. Proof affidavit of PW1 filed and 38 documents were marked on her side. Then the case was adjourned to 12.02.2010 for PW1's cross examination. In the mean while, Appellant-mother and the minor children were re-located in Pondicherry. Respondent-father filed various applications. By the order dated 22.10.2010, Justice V.Ramasubramanian,J passed an order to the effect that in addition to the second weekend, Respondent-father should have similar custody of the children on the fourth weekend of every month also and the relevant portion of the said order dated 22.12.2010 reads as under:- "(c) The petitioner-father shall take the children on the evening of the Friday preceding the Second Saturday of a month and after having company of the children on Saturday and Sunday, hand over the children at the residence of the respondent-mother before 6.00 P.M., on the following Sunday. The same arrangement shall also happen on the Friday preceding the fourth Saturday of the month so that the petitioner has interim custody for the second weekend and the fourth weekend of every month." 5. Even though trial commenced in February 2010, there was not much progress in the trial. Even when the trial is pending, Respondent-father again filed other set of applications to modify the order dated 11.03.2010 and also the order dated 22.10.2010 and the applications were disposed of by the impugned order dated 24.6.2011 giving Respondent-father custody of children on every alternative weekends and other alternative weekends to have visitation rights. The impugned order reads as under:- "(a) the father shall take custody of children on every alternative Saturday morning and bring them to Chennai and drop them back on the evening of the next day, viz., the following Sunday. On the other alternative weekend, the father shall have the company of the children in Pondicherry itself; and (b) all the vacations, such as Dasara, Christmas and Summer, whenever children have all these vacations, shall be shared equally between both the parties." The effect of the above order is that Respondent-father shall have custody/visitation rights on all weekends. Being aggrieved by the https://hcservices.ecourts.gov.in/hcservices/ grant of visitation rights to Respondent-father on all weekends, Appellant-mother has come forward with this appeal. 6. When the matter was taken up on 22.07.2011, parties were present. We have also enquired the children in the Chamber. We have noticed that daughter-Anamika, aged 12 years is not willing to go with the Respondent-father even for one day. We have also enquired the boy-Riyaan, aged 7 years. Boy-Riyaan has not expressed anything and remained quiet. In the above said circumstances, we felt that it would be appropriate to hear the arguments in the OSA itself and dispose of the matter on merits. 7. Mr.R.Thiagarajan, learned counsel for Appellant contended that by granting the visitation rights of alternative Saturday and Sunday at Pondicherry, the Appellant-mother is literally deprived of the company of the children during weekends which resulted in manifest miscarriage of justice. It was further submitted that the main O.P.No.144 of 2008 is in part-heard stage and posted on 01.09.2011 for further evidence while so, learned Judge ought not to have passed the impugned order on 24.6.2011. It was submitted that the educational needs of the children require them to be in Pondicherry and that they are not in a position to spend the time for their home work and other extracurricular activities which the learned Judge failed to keep in view. 8. Taking us through the various Petitions and the orders, Mr.P.V.Balasubramanian, learned counsel appearing for Respondent- father contended that even though number of interim orders came to be passed, the Court orders are not properly complied with and every time only by the order of the Court, Respondent-father could exercise his rights of interim custody/visitation rights. It was further submitted that the order of the Court cannot so allowed to be flouted and having regard to the conduct of the Appellant-mother, the learned Judge has rightly modified the order and the impugned order does not suffer from any infirmity. 9. Now the children are re-located in Pondicherry and the daughter is studying in 8th standard and son is studying in 3rd standard in "The Study School", Pondicherry. By the order dated 22.12.2010, interim custody of minor children was given to the Respondent-father for two weekends which in our considered view would be sufficient. Since the children are studying in school, for doing their home work and for their other extracurricular activities and also to be with their mother during the weekends, it would be appropriate that Respondent-father to have interim custody only for two weeks. After the order came to be passed on 22.12.2010, there was no change of circumstance to modify the earlier dated 22.12.2010. In our considered view, four weekends are to be shared between the https://hcservices.ecourts.gov.in/hcservices/ father and mother. We find that the earlier order dated 22.12.2010 appears to be more reasonable. Learned Judge was not right in giving interim custody/visitation rights of the minor children to the Respondent-father for all four weekends and the impugned order is liable to be interfered with. Since trial is pending, both parties are directed to co-operate with the earlier disposal of main O.P. rather than coming up with multitude of applications. 10. In the result, the impugned order dated 24.6.2011 is set aside and this appeal is allowed. Earlier order of the single Judge dated 22.12.2010 shall continue to govern the parties as to the interim custody of the children/sharing of holidays. Both parties are directed to co-operate with the trial Court for early disposal of main O.P.No.144 of 2008. No costs. 26.07.2011 ORDER:This OSA No.215/2011 having been posted on Monday the 8th day of August, 2011 for being mentioned" subsequent to the Order of this Court dated 26.07.2011 and made herein in the presence of Mr.R.Thiagaraja, Advocate for the petitioner, and of Mr.P.V.Balasubramanian, for M/s.B.F.S.Legal, Advocates for the Respondent the Court, Court made the following Order. (Order of the Court was made by R.BANUMATHI, J.) This matter is listed today under the caption 'for being mentioned'. 2.As per the order dated 22.12.2010, the visitation right fell on 23.07.2011 and 24.07.2011. When we passed the order on 22.07.2011, Mr.R.Thiagarajan, learned counsel for the appellant submitted that in lieu of the fourth week end, the respondent could have the custody of the children from the fourth week end i.e. on 30.07.2011 and 31.07.2011. Alleging that the said undertaking has not been complied with, learned counsel for the respondent/father mentioned before the Court and on his mentioning, the matter was listed under the caption 'for being mentioned'. 3.Learned counsel for the appellant/mother Mr.R.Thiagarajan would submit that the children went on a field trip to Dakshinchitra on 30.07.2011 and therefore, the custody could not be given to the respondent/father. Learned counsel would further submit that the appellant/mother would positively comply with the direction of the Court in future. https://hcservices.ecourts.gov.in/hcservices/ 4.Having regard to the submissions, the appellant/mother shall bring the children to Chennai on 12.08.2011 and hand over the custody of the Children to the respondent/father in the Mediation and Conciliation Centre at 4.30 p.m. 08.08.2011 ORDER: This OSA No.215 of 2011 having been posted on Friday the Twenty Sixth day of August 2011 for being mentioned to"subsequent to the order of this Hon'ble High Court dated 26.7.2011 and 8.8.2011 made herein in the presence of Mr.R.Thiagarajan, Advocate for the petitioner and of Mr.P.V.Balasubramanian, Advocate for M/s.B.F.S.Legal for the respondent this court made the following Order: While disposing the appeal in O.S.A.215 of 2011, we have held that the earlier order of the single Judge dated 22.12.2010 shall continue to hold good as to the interim custody of the children/sharing of holidays, the relevant portion of the order of the single Judge dated 22.12.2010 reads as under: "(c) The petitioner-father shall take the children on the evening of the Friday preceding the Second Saturday of a month and after having company of the children on Saturday and Sunday, hand over the children at the residence of the respondent-mother before 6.00 P.M., on the following Sunday. The same arrangement shall also happen on the Friday preceding the fourth Saturday of the month so that the petitioner has interim custody for the second weekend and the fourth weekend of every month." 2. It was stated by the learned counsel appearing for the respondent/father that the order dated 22.12.2010 made by the learned single Judge does not indicate the exact place, where the respondent/father could take the custody of the children for exercise of his visitation rights and non-indication of place has given rise to certain difficulties in taking the custody of the children for the week ends. The learned counsel for the appellant/mother has filed a Memo suggesting 3 places in Puducherry, which are very near to appellant's house. Out of the three places, both parties agreed that Baskin Robins Ice-cream outlet at S.V.Road, Puducherry would be appropriate for taking custody of the children by the respondent/father for exercise of his visitation rights. Our Order dated 26.7.2011 and the Order of learned single Judge dated 22.12.2010 is clarified to the effect that the respondent/father shall take the custody of the children at Baskin Robins Ice-cream outlet at S.V.Road, Puducherry on the stated time and weekends as directed in the order of single Judge dated 22.12.2010. https://hcservices.ecourts.gov.in/hcservices/ 3. Earlier, by the Order dated 8.8.2011, we have directed the appellant/mother to bring the children to Chennai on 12.8.2011 and hand over the custody of the children to the respondent/father in the Mediation and Conciliation Centre at 4.30 P.M. Learned counsel for respondent/father has submitted that on 8.8.2011, the children went to the grandparents house and remained with the grandparents only for two hours. Thereafter the children did not go to the respondent/father and thereby respondent/father has lost exercise of his visitation rights for one weekend. Denying the same, the learned counsel for the appellant/mother has stated that the children were allowed to go with the father, but the children only refused to go. We do not propose to delve into the merits of rival statements of both parties. 4. Since the respondent/father could not exercise the visitation rights for said week end, in lieu of the same, the learned counsel for the appellant mother has submitted that the respondent/father could have the custody of the children tomorrow i.e., on 27.08.2011 at 2.00 P.M from the above stated place i.e., Baskin Robins Ice-cream outlet at S.V.Road, Puducherry. Thereafter from the next week end onwards, exercise of visitation rights shall be as per our original order dated 26.7.2011, however handing over and taking over of the children shall take place at Baskin Robins Ice-cream outlet at S.V.Road, Puducherry. We make it clear that the parties are directed to go before the learned single Judge for any further clarification, if any. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar usk To The Sub Assistant Registrar, Original Side, High Court, Madras. +1 cc to Mr.R.Thiagarajan , Advocate, Sr.No.53622 +1cc to M/s. BFS Legal, Advocate Sr 54220 O.S.A.No.215 of 2011 RS(co) km/14.9. https://hcservices.ecourts.gov.in/hcservices/