(1) WP 9216/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 9216 OF 2010 Mohammad Salim Hajibhai Payak .. Petitioner Vs. Mrs. Salma Salim Payak .. Respondents Mr. Y. R. Singh i/b Udit Law for the Petitioner. Ms. Iva Bansal for the Respondent. CORAM : MRS. ROSHAN DALVI, J. Date of reserving the order : 8th JUNE, 2011. Date of pronouncing the order : 16th June, 2011. ORDER 1. The Petitioner-father has challenged the order of the learned Judge of Family Court No.7 at Bandra, Mumbai dated 17.09.2010 granting access to the Petitioner to see his daughter and refusing temporary custody of the child to him. 2. The parties have been married since 2004. They had a child, a daughter named Kaamilah in 2006. There have been previous proceedings with regard to the custody and access of the child between the parties. Certain Consent Terms were filed. The Respondent-mother had custody of the child. The Petitioner was agreed to be given access, including overnight access, between Saturday and Sunday. The Petitioner was to pay Rs. 2,500/- to the Respondent as maintenance for the child. 3. There have been ugly disputes between the parties since at least May, 2010. After the initial disputes in about February, 2009, the parties had (2) WP 9216/10 reconciled. The reconciliation did not work for long. In May, 2010 the parties have separated. The Petitioner- father claims that the Respondent-mother left the matrimonial home without her child. The Respondent- mother claims that she was beaten up and thrown out of the house and certain criminal proceedings were filed against the Petitioner. She has alleged collusion of the husband with certain police officers who forcibly withdrew the child from her custody. The mother claims that she was deprived of the custody by an illegal act forcibly taking the child from her with the help of the police. She has lodged criminal prosecution against certain police officers also. 4. Consequently the custody of the child, which was with the Respondent-mother in 2009 when the parties had separated, came to be with the Petitioner-father. The Petitioner has not explained how he came to be having custody of the child in and after May, 2010 when under initial Consent Terms the custody was admittedly with the mother and he was granted only overnight access for one day in a week. 5. The Respondent-mother has filed a criminal prosecution alleging cruelty and harassment at the hands of the Petitioner-husband under Section 498-A of the Indian Penal Code. The Petitioner-husband came to be arrested and was in jail for about 15 days in or about June, 2010. Even during that period the custody of the child remained with the Petitioner-father and not with the Respondent-mother. 6. That is a very strange circumstance. It is not (3) WP 9216/10 understood why if the mother left with the child initially in 2009, she would not have left with the child even in 2010 when the reconciliation broke down and the parties had disputes. 7. The mother also claims that the child was not cared for. The child was ill but was not given medical treatment. She was sent to school instead. She learnt this aspect from a neighbour. The mother filed a Petition for claiming custody of the child on 2nd August, 2010. Incidentally that was the date of the arrest of the Petitioner-father. 8. On 11.08.2010 the mother went to the school of the child. She met the Principal and collected the child. The father claims that the mother has taken such custody “without following due process of law”. That is an astonishing argument. A child is not a property, the possession of which is required to be taken by a mother by following any process established by law. No such process is established by law. The child is hardly 5 years old. The custody of the child of such tender years is expected to be with his/her mother. In this case it was with her mother. The father has indeed extricated the child from the mother otherwise than by following “due process of law”. The father has not explained how the child came to in his custody when it was admittedly earlier in the mother’s custody. 9. Since the mother took the child from the school on 11.08.2010, the father has claimed that mother kidnapped the child. He has got lodged criminal complaint through his sister-in-law from whose custody (4) WP 9216/10 the child is claimed to have been kidnapped. 10. The sister-in-law of the Petitioner-father is his brother’s wife. She had another child called Arzoo. Both children attended the same school being St. Mary School, Andheri. She had claimed that she used to ferry the children to and fro the school. On 11.08.2010 the Respondent-mother forcibly took away the child from her after assaulting her and also took away a gold chain. The claim is too far-fetched to be accepted. There was no reason for the mother to commit such an offence. If the mother desired to take her own child, she could have done so precisely as she has claimed. 11. Upon the criminal complaint lodged by the sister-in-law of the Petitioner-father, the police have recorded certain statements. The statement of Principal of the school shows that the mother took the custody of the child as she claims. There is also a statement of a driver of a vehicle showing that he used to take the children to and fro the school. The sister-in-law of the Petitioner–father is, therefore, prima-facie seen not to have ferried the children to the school. The statement of the driver shows that he accepted the contract of taking the children to school. On 11.08.2010 the child of the parties was not available. He made inquiries in the school. He was told that the mother has taken the child. Hence he did not take the child back home as usual in his vehicle. 12. The mother has relied upon certain medical case papers and a doctor’s certificate to show that she took her child from the school when she was ill and got her (5) WP 9216/10 medically treated. That was neglected to be done by the father. The documents do show that the child suffered from cold, cough, fever and bronchitis. It cannot be put past any mother to allow a child of 5 years who is even slightly ill to be left unattended when she can claim her custody and take the child under her care. It is not for the Court to see how, when and why the child came to be in the custody of the most apt and natural person to decide about its temporary custody, access, rights of the parents etc. All that the Court has to see is whether the child is cared for, protected and secure. 13. It may be mentioned that neither parent has a legal right to claim custody and/or specific access to any child. A child is not a chattel which can be enjoyed by any party under its parental status. It may be mentioned that the parents have parental responsibilities and duties first and rights and privileges to their children afterwards. In fact a child is not an investment of any parent. A parent is a guardian of the child. As such guardian, he has responsibilities to meet, obligations to discharge and duties to perform. One such duty is to care for the child medically and physically. The other is to provide for it economically and financially. This would ensure a child a sound social space. 14. The application of the Petitioner-father considers only his unilateral case upon what he claims is his legal right. It is contended that in the Consent Terms he was given overnight access. The impugned order granting access only for three hours in the children complex twice a month on two Saturdays is erroneous and (6) WP 9216/10 must be interfered with in this Writ Petition. He further claims that because he had custody of the child, he cannot be deprived of such custody pending his Petition. 15. The challenge to the impugned order is, therefore, wholly misconceived. The learned Judge has considered what transpired between the parties since 2009. The learned Judge has rejected the case of the Petitioner-father that the Respondent-mother had any abnormal behaviour upon the instances stated by him. Of course that aspect has not even been argued before this Court. The learned Judge has correctly considered the incident that transpired in August, 2010 and the case of the wife of complaint under Section 498-A of the Indian Penal Code. The learned Judge has also appreciated the prima facie the evidence before him contained in the statements recorded by the police to evaluate the incident of 11th August, 2010. The learned Judge has correctly concluded that there is no reason to disturb the custody of minor daughter from her mother. Yet because the Petitioner is the father of the child, the learned Judge has been benign enough to grant the father access albeit in the children complex. Such access can be given only under professional supervision to the father such as the Petitioner. 16. Hence the impugned order is most reasonable and proper. No interference is called for. Writ Petition is dismissed. (ROSHAN DALVI, J.)