:1: IN IN IN THE PARSI CHIEF MATRIMONIAL COURT AT BOMBAY THE PARSI CHIEF MATRIMONIAL COURT AT BOMBAY THE PARSI CHIEF MATRIMONIAL COURT AT BOMBAY PETITION PETITION PETITION NO. 2 OF 2008 NO. 2 OF 2008 NO. 2 OF 2008 IN IN IN SUIT SUIT SUIT NO. 5 OF 2006 NO. 5 OF 2006 NO. 5 OF 2006 Mrs. Hutoxi Minoo Panthaki. ...Petitioner. V/s. Mr. Kersi Jamshed Divecha. ... Respondent. Ms. S. Nanavati for the Petitioner. Ms. N. Mehta with Mrs. A. Dutta and Ms. F. Contractor for the Respondent. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. JUDGMENT JUDGMENT JUDGMENT RESERVED ON : 19TH DECEMBER 2008. RESERVED ON : 19TH DECEMBER 2008. RESERVED ON : 19TH DECEMBER 2008. JUDGMENT JUDGMENT JUDGMENT PRONOUNCED ON : 24TH FEBRUARY 2009. PRONOUNCED ON : 24TH FEBRUARY 2009. PRONOUNCED ON : 24TH FEBRUARY 2009. ORAL ORAL ORAL JUDGMENT :- JUDGMENT :- JUDGMENT :- . The hearing of this matter was concluded prior to Christmas Vacation but both sides sought time to tender written arguments. Accordingly, written arguments have been filed and the matter is being decided by me. 2. In this Petition, the Petitioner prays for the following reliefs :- "a. That this Hon’ble Court be pleased to grant the custody of both the minor sons to the Petitioner; b. That this Hon’ble Court be pleased to direct and order the Respondent to pay the entire :2: educational expenses of both the minors until their graduation; c. That this Hon’ble Court be pleased to modify the decree dated 3rd March, 2006 in terms of prayer clause (a) and (b); d. That in the event of the Hon’ble Court granting the custody of the minor children to the Petitioner, the Petitioner be permitted to have the minor son Sheroy admitted to a school close to where she is living presently and she be allowed to take the school leaving certificate from the present schools without any interference or impediments from the Respondent." 3. The Petitioner married the Respondent on 20th January 1992 at Bombay as per Parsi Zoroastrian Rites and Customs. From this marriage, parties have two sons. One was born on 30th November 1992 and another was born on 22nd April 1998. Their names are Jehan and Sheroy. 4. It is stated that after the birth of the second son, there were serious differences between parties. They realized that they were temperamentally not suited for each other. They filed a Petition for divorce by mutual consent being Petition No.5 of 2006. They invoked Section 32-B of the Parsi Marriage and Divorce Act, as amended, in :3: 1988. This Court dissolved the marriage between the Petitioner and the Respondent by a decree of divorce dated 3rd March 2006. The decree provided for custody, alimony, maintenance and education of the children. Annexure ‘A’ is a copy of the consent terms. Clauses 2 to 8 of these Consent Terms are relevant for the purposes of the present petition and they are reproduced hereinbelow :- "2. Agreed and ordered that Plaintiff No.1 will have custody of both the minor sons, viz. Jehan K. Divecha, born on 30.11.1992, aged over 13 years, and son Sheroy K. Divecha, born on 22.04.1998, aged over 7 years and that he will educate, maintain and look after the welfare of both the sons entirely at his own expenses. 3. Agreed and ordered that Plaintiff No.2 will have access to both the minor sons on every 2nd Friday of every month, from 6.15 p.m. till Sunday 7.30 p.m. The Plaintiff No.2 will herself pick up the children from Plaintiff No.1’s place and will drop them back at the Plaintiff No.1’s place by herself. It is also agreed and ordered that Plaintiff No.2 will have access to both the minor sons on every 4th Saturday of every month, from 6.15 p.m. till Sunday 7.30 p.m. The Plaintiff No.2 will herself pick up the children from the Plaintiff No.1’s place and will make arrangement at :4: her own responsibility to drop the children back to the Plaintiff No.1’s place. 4. Agreed and ordered that both the Plaintiffs will share equally (50-50), the Diwali and Summer Vacations of both the minor children, as mutually convenient by them. 5. Agreed and ordered that Plaintiff No.2 will not interfere in any way, in the upbringing of the minor children by the Plaintiff No.1. It is further agreed that the Plaintiff No.1 will also not interfere in any way, while Plaintiff No.2 is availing access to the minor children. 6. Plaintiff No.1 agrees and undertakes to this Hon’ble Court to keep Plaintiff No.2 informed about both the sons’ progress in school and will also show her the Report Cards of them. 7. Agreed and ordered that if either Plaintiff desire to take the minor sons out of the jurisdiction of Mumbai, then they will inform / intimate as to where the children are taken, to the other in advance. It is further agreed by both the Plaintiffs that if they desire to take the children out of India, then they will take prior leave of the Court. :5: 8. Agreed and ordered that Plaintiff No.1 will inform in advance about the day and time and venue of the Navjote of son Sheroy K. Divecha, to the Plaintiff No.2 and Plaintiff No.2 will be allowed to participate in the Navjote and her mother and father will also be invited to attend the Navjote Ceremony of son Sheroy K. Divecha. Plaintiff No.2 will not interfere in any arrangement made for the said Navjote by Plaintiff No.1." 5. In para 3 of this Petition, the Petitioner - Mother states that at the time of the Consent Terms and Decree she agreed that the custody of the minor children would remain with the Respondent in the light of the following circumstances :- (a) That she had no place to reside and was residing with her parents at Thane. (b) The elder son Jehan was studying in 9th Standard and to remove him from the School at that crucial time would mean affecting his studies adversely. 6. In para 5 it is alleged by the Petitioner that she was having access to the children as per the consent terms. However, she discovered that the children were :6: falling back in studies. They were missing their mother. They were not eager and happy to return to the Respondent on Sunday evening as per the terms. They would delay their departure from Thane to Bombay Central and only after much cajoling and explaining that they would return to their father. The children were being subjected to cruel treatment by the father. They were being separated from their friends. The school bus service of the elder son Jehan was dis-continued by the Respondent and he was forced to go to school by public transport. No money was given for public transport. The child was asked to spent for the same from his pocket money. Some times, a bus pass was taken out for him. The children were not given nutritious food. The Respondent’s mother is aged and unable to do much house work. Some arrangement for tiffin was made but it was insufficient for four people including growing children. 7. However, whenever they came to meet the Petitioner, they were happy. They would narrate to the Petitioner that the Respondent use to have a bitter fight with his mother. The fight was over the children. When the elder son indicated his preference for the mother, he was punished by the Respondent. Despite all this, the Petitioner would make every effort to send the children home to their father so that there is no contempt of Court’s order and decree. :7: 8. The Respondent was not abiding by the consent terms in so far as upbringing of the children. The Petitioner would call up the children and would talk to them to cheer them up. However, such telephone calls were considered to be interference in the upbringing the children. the Petitioner also came to known that Respondent came to home very late at night. He hardly spent any time with the children. The children are left alone with the aged grandmother. The Petitioner also discovered that the children were not given extra pair of clothing. 9. In para 8 of the Petition, this is what is stated :- "8. The Petitioner says that the elder son Jehan developed a severe skin allergy in the last 2 to 3 years, which needed medical attention. It was noticed that the allergy was spreading to his face and he was getting severe rashes which too needed medical attention. The Respondent did not bother and never took the child to the doctor. On one of the access visits the child complained to the mother of the allergy and the Petitioner was shocked to see the extent of the allergy and the neglect of the Respondent. She immediately took the child to a skin specialist who prescribed certain medicines to relieve the child of any further pain. The entire expenses for this :8: treatment were borne by the Petitioner. The petitioner craves leave to refer to and rely upon the medical bills, receipts and doctor’s prescription when produced. The elder son Jehan has been wearing spectacles for a long time. Due to wear and tear the old pair of glasses had given way and they had broken. Despite the child informing the Respondent of the same he was not taken to the optician for a check up no was a new pair of glasses given to him. When the Petitioner came to know of the same, she got him a new pair of glasses. The Petitioner craves leave to refer to and rely upon the bills etc. for the new glasses purchased for the elder child Jehan. From the attitude adopted by the Respondent it appears to the Petitioner that the Respondent had begun to differentiate between the children and whereas the elder son Jehan was neglected the younger son Sheroy’s needs were met with. As the elder son Jehan was almost six years older to the younger son Sheroy his needs were more as he was growing up faster. Due to this the elder son at some stage began developing an inferiority complex. All this however did not in any way give rise to any form of sibling rivalry nor did the love and affection shared by the children diminish. Both the brothers are very fond of each and care for one another and enjoy each other’s company." :9: 10. Thereafter, the Petitioner points out that she met Mr. Minoo Panthaki, who proposed marriage to her. Before taking any decision, the Petitioner thought it fit to inform the said Panthaki about her previous marriage and about the arrangement made as far as her children were concerned. Despite all these factors, this gentleman agreed to marry the Petitioner. The Petitioner married him on 7th January 2007. Thus, the Petitioner has re-married. She informed about her re-marriage to the children and the Respondent. 11. After her re-marriage, the Petitioner came to reside with her husband at Godrej Staff Quarters at Vikroli. During one visit of the children to her place at Vikroli, she realised that the children were being told to take the mobile number of the Petitioner’s husband Mr. Panthaki and inform the same to the Respondent. Thus, she realised that the Respondent was inculcating wrong habits and values in the Children. She sat down with the children and explained to them. Thereafter the children have never done such a thing. On the other hand, during the visits of the children, the Petitioner discovered that they have grown friendly with her husband Minoo Panthaki. They enjoy his company and were eager to meet him. They noticed that they were feeling very comfortable with her husband. Mr. Panthaki looked after them properly by taking them out for dinner and helping them with their :10: school work. Thus it is stated that the children are fond of him as he spend quality time with them without scolding them or commenting about their habits. It is alleged that the Petitioner was denied access after marriage 2007 for some time. It is alleged that the Respondent became very apprehensive and started putting curbs on the Petitioner as far as her meeting with the children. She was not allowed to call up children. Elder son was admitted to some vacation classes and therefore, access was not allowed to him. The Petitioner, therefore, requested the Respondent that atleast the younger son be allowed to meet her which request also was not accepted by the Respondent on the ground that the younger son was not willing to visit his mother alone. Thus, the Respondent has taken steps to distance the children from the mother and he was not abiding by the consent terms. She has also stated in para 13 of the Petition that the elder son’s studies were affected and he was not doing well in the exams. He was driven to go for coaching classes but Respondent did not admit him to any of the classes. After great persuasion, the child was admitted to the coaching classes. 12. In para 14 and 16 of the Petition, the Petitioner states thus :- "14. During the months of July and August 2007, when the Petitioner availed of the by monthly two hour Sunday access of the children she found that :11: their bodies were full of bug bites. When she asked them about the same they informed her that they were being bitten in the night and were not having sound sleep. They had even complained about the same to their father but he did not pay any heed to their complaints, instead during that period he had left to go to Dubai without informing the Petitioner or the children and had left the children in the care of his aged mother. It would not be out of place to mention here that the younger son Sheroy has a severe blood deficiency known as G6PD and certain medications do not suit him at all. Despite having this knowledge the Respondent administered certain eye drops when the child had conjunctivitis. Further Sheroy has allergy to prawns and despite this he was given prawns for lunch one day and the reaction was very painful. The child had swollen lips for several days. As the Petitioner could not bear to see the child suffer she sent the medication for the child. 16. The Petitioner states that the children have now started retaliating and refuse to go home. The elder son has even threatened to run away from home if the Petitioner does not keep him with her. He had often questioned her as to why she cannot move the Court and get permission to allow them to stay with her. The Petitioner realizes that the elder :12: son is of an age when he understands what is happening and has in the past undergone severe depression, for which the Petitioner had taken him for treatment. The Petitioner craves leave to refer to and rely upon the doctor’s bill when produced. The elder son has also informed the Petitioner that for every small error committed by him he is beaten mercilessly by the father and is subjected to a barrage of foul and filthy language. The Petitioner has tried to counsel with the child but no avail. He has informed the Petitioner that when she will take access of the children as per the terms, the next time he will not return to his father and will run away to a place where neither of them will be able to find him. In the light of all these facts, the Petitioner is applying to this Hon’ble Court through the present petition that she be allowed to take the custody of both the children, in their interest and welfare." 13. It is, thereafter, alleged that the Respondent forced the children to work at home. Even the younger child was told to clear the dining table. The children were told to prepare a drink for the Respondent. 14. In these circumstance, and when the Petitioner has now settled in life so also her present marriage being successful that she applies for the reliefs more :13: particularly reproduced above. She states that she is working with M/s. Godrej & Boyce. Her financial position is sound. There is a good school which is run by her employer. The children will get good education. They will live in a happier environment and will be looked after by the Petitioner and her present husband who is very fond of them. She states that even prior to this marriage and earlier also she was looking after the needs of the children. Being their mother, she knows what are their requirements. 15. Based upon this, the petition has been filed. 16. After being served, the Respondent has filed a reply and in the reply affidavit he has denied all the contentions. He states that the Petition is filed to harass him. The petitioner has made false allegations. He states that the consent terms were filed in the petition, which was for divorce by mutual consent. The fact that the consent terms were entered into would show that the mother did not want the children to be with her. She desired to re-marry. The Petitioner left home in October 2004 without caring for her children and her aged mother-in-law. The Respondent was 44 years of age at that time. Since the Respondent did not desire to affect the children, he agreed for divorce and that is how the consent terms were filed. :14: 17. It is alleged that visiting rights and access was granted to the Petitioner but she has taken undue advantage of the situation. She had access to them but has spoiled the children by continuously giving them expensive gifts. It is stated by the Respondent that he has inculcated discipline in the children. He has done so because that is in their interest. Ultimately, they are in his custody and he has to take care of them. He has denied that the children’s need were not looked after. He states that on occasions he has been strict so that the children follow discipline and inculcate good morals and clean habits. He has single handedly handled the children. He has been educating and disciplining them. There is no breach of the consent terms and all throughout the Petitioner was having access to the children. 18. It is alleged by the Respondent that because the Petitioner has not been able to bear any children from her re-marriage that she is trying to take custody of the children from her previous marriage. In para 5 of his reply the Respondent has narrated the events in May 2008. The Respondent has stated that the Petitioner did not desire that the children should be educated in Bombay. she wanted to send the children to Boarding School. However, the Respondent is taking care of both children properly. Elder son has passed S.S.C. (10th Std.) and now he is admitted in Burhani College. He is pursuing his :15: higher studies in Commerce Faculty. The younger son is studying in a reputed school, St. Mary High School, in 6th Std. For all these reasons, it is stated by him that no case is made out for modification of the order passed by this Court. Filing of such Petition will cause emotional stress to the children. The children are of impressionable age and they get brain washed against their father and the grandmother. The Petitioner had managed to brain wash them to such an extent that the children did not re-cognize their grandmother. He therefore states that the custody should remain with them. 19. He has denied that he is short tempered and beats the children. The Respondent denies this but states that he is disciplinarian. He raises voice only to see that the children behave properly. They must turn out to be good human beings. All their requirements and needs are looked after by him. He is also giving them the necessary love, affection and emotional support. 20. With reference to the allegations made in paras 8,14 and 16 of the Petition, the Respondent has not disputed that he beat the children on few occasions and terms it as not beating but light slapping. He has stated that the Petitioner had never moved the Court for any variation in the time of access or days thereof. He has denied that the children complained about not being treated properly. He denies that the skin infection was :16: developed by the elder son recently. He states that the skin infection was on left thigh and he was suffering from the said infection even during the subsistence of the marriage. It is stated that the elder son was treated medically without the knowledge of the Respondent. He states that he provides everything to the children including their spectacles. On the other hand, the Petitioner is poisoning their minds. 21. Thus, the Respondent has denied all allegations and accused the Petitioner of having an affair and thereafter, leaving the house without being bothered about the children. The Respondent admits that the tuition fees were paid to the extent of Rs.25,000/- by the Petitioner. He admits that younger son was treated for his Blood deficiency and administered treatment. 22. The Respondent has stated that he has not re-married so as to take care of the children. He states that he is giving them the best education and also looking after their comforts. He has taken them out in vacations. Only because he is strict does not mean that the custody should be taken away from him. Further, no case is made out for holding that the welfare and interest of the minors is not safe in the hands of the Respondent. He is taking care of all their needs. He states that the Petition is filed only with a view to get custody of the children and therefore, the Petition be dismissed. :17: 23. The Respondent has relied upon some of the annexures to the reply affidavit. 24. However, both sides have made it clear to me that they do not wish to lead any oral evidence and the matter be decided on the basis of the affidavits. It is also not disputed that in terms of the settled principles, the Court can interview the children. 25. It must be stated that the Petitioner moved a Notice of Motion during the pendency of the main Petition and sought interim reliefs. This motion was moved on 7th June 2008. The Respondent filed a reply thereto. 26. This Notice of Motion was placed before a learned Single Judge of this Court and the learned Single Judge has passed an Interim order. It appears that the Single Judge was influenced to a great extent by the fact that the Petitioner - mother did not hand over custody of the children as per the consent terms, after she had access to them in the Summer Vacation of 2008. It is observed by the learned Single Judge in para 7 of her order that she should have returned custody and thereafter applied for any reliefs. Further, the learned Single Judge was greatly influenced by the fact that the Petitioner has re-married whereas the Respondent has remained unmarried. The Petitioner left the children and the Respondent in :18: 2004 and has not come forward to claim custody of the children. The learned Single Judge also interviewed the children and found them to be highly stressed, anxious and nervous. Therefore, she directed that both parties as well as children required Counselling. She directed that Counselling Session should be undertaken by the Agency nominated by her. In para 17 of her order, the learned Single Judge has referred to the Counsellor’s reports and some of the observations