Mohan Kumar Rayana vs Komal Mohan Rayana

4. The subject matter of these appeals are four orders passed by the Bombay High Court on 12th July 2007, 19th July 2007, 27th July 2007 and 6th August 2007 in two appeals from a petition No.D-65/2005 before the Family Court. In order to appreciate the circumstances in which these orders came to be passed, it will be necessary to state a few facts leading to the commencement of the proceedings before the Family Court.

6. In any event, there appears to have been some marital discord, which resulted in the respondent leaving the matrimonial house in July 2004 with her minor daughter and seeking shelter with her parents at Bandra. According to the respondent, during the said period she continued to send Anisha to the Kinder Campus School at Chembur, the area where the appellant was residing and permitted him on occasions to keep back Anisha at his residence. The respondent has alleged that in October 2005, taking advantage of such a situation, the appellant kept Anisha back with him and did not return her to the respondents custody. This compelled the respondent to meet her daughter in the school campus, but since this arrangement did not also work out, in the last week of November 2005, she approached the Chembur police and with their help got back the custody of her daughter. A series of allegations were thereafter made that on 30th November, 2005 the appellant, with the help of some of his associates, forcibly removed Anisha from the respondents custody and made her completely inaccessible to the respondent. It is in such compelling circumstances that she moved the Family Court seeking custody of her minor daughter under Section 6 of the Hindu Minority and Guardianship Act, 1956 read with Ss.7 and 25 of the Guardians & Wards Act, 1890.

7. The appellant herein also filed a Custody Petition, being D-66 of 2005, and both the applications were taken up for hearing together by the learned Family Court. By its judgment dated 2nd February 2007 the Family Court dismissed the appellants application for custody and allowed the application filed by the respdondent by passing the following order :

8. Aggrieved by the said Judgment and order of the Family Court, the appellant filed Family Court Appeal No. 29/2007 before the Bombay High Court on 23.2.2007 and the same was admitted on 7th March, 2007 and was said to have been per- emptorily fixed for final hearing on 26th March, 2007. On 26th March, 2007 the respondent also filed an appeal, being Family Court Appeal No.61/2007, challenging the operation of the judgment of the Family Court dated 2.2.2007 granting access to the appellant to meet Anisha. The said appeal was also admitted on 3rd May, 2007. On the same day, the directions contained in the order of the Family Court dated 2.2.07 regarding access to the appellant to meet Anisha, were modified by the High Court by directing that the minor child would be available to the appellant as and when he was physically present in Bombay at his house. It was also stipulated that whenever the appellant was not available in Bombay the child should remain with the respondent. It was specifically mentioned that the child should not be removed by the appellant out of Bombay for any reason whatsoever, except in the circumstances mentioned in the order.

10. Certain circumstances intervened which prompted the Division Bench of the Bombay High Court to modify its order dated 3.5.07 on 12.7.07 by reducing the access granted to the appellant and limited such access only to the day time on the ensuing Saturday and Sunday. The said order passed in the two above-mentioned appeals is one of the orders forming the subject matter of the appeals before us.

11. Subsequently, after interviewing the parties and the minor child, the High Court passed a further order on 19.7.07 directing the appellant and the respondent to visit a psychiatrist with the child and to obtain a report from him. The access granted to the appellant on Saturdays and Sundays from 9 A.M. to 9 P.M. was continued. The said order passed in application No.81/2007 filed by the respondent herein in Family Court Appeal No.61/2007, is one of the other orders which form the subject matter of the present appeals before us.

12. A third order was passed by the Bombay High Court on 27.7.07 directing the appellant and the respondent to seek appointment with a psychiatrist within a week, and he was also directed to submit his report within 2 weeks after the parties were examined. The interim arrangement made earlier was directed to continue. The said order is the third order which is impugned in the present appeals. The fourth order impugned in these appeals was passed on 6.8.07 in the pending Civil Application No.81/2007, whereby, in view of the intervening circumstances, the High Court passed the following order. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.61 OF 2007 ALONGWITH CIVIL APPLICATION NO.81 OF 2007 ALONGWITH FAMILY COURT APPEAL NO.29 OF 2007 Mr. R.T. Lalwani, Advocate for the applicant/wife Mr. Kevic Settalwad Advocate i/b D.H. Law & Associates for Respondent/husband CORAM : J.N. PATEL AND A.S. SAYED, JJ DATE : AUGUST 6, 2007 P.C. (Per J.N. Patel,J):

We hope that the parties would maintain some discipline in observing the orders of the Court and cooperate.

4. Parties are at liberty to mention the matter only after they comply with the orders of this Court and report of the psychiatrist is received. Thereafter this Court proposes to pass the further orders. The matter stands adjourned for 4 weeks. We make it clear that on the mean time we would not entertain any application for interim relief, or for permitting the parties to meet the child, or to take matter on board, which has led this Court to hold all orders passed earlier in abeyance.

15. Since we are only called upon to decide the said issue, we are not required to go into any other question relating to the appeals pending before the Bombay High Court. We have met the appellant, the respondent and also the minor child, Anisha, separately, in chamber, to ascertain what each had to say regarding the making of interim arrangements to allow the appellant to have access to Anisha.

16. After having looked through the materials on record and after considering the views of the parties and the minor girl, we are of the view that the appellant should not be denied complete access to his minor child, even if there has been a default in complying with the directions of the High Court and that pending the disposal of the appeals he should be allowed to have access to his minor child, at least to some extent.

17. We, accordingly, dispose of these appeals with the following directions :-

Likewise, once Anisha is handed over to the appellant he too must honour the aforesaid arrangements and not keep Anisha with him beyond the time stipulated. In the event of either of the parties violating the aforesaid arrangement, the other party would be at liberty to pray for appropriate orders before the Bombay High Court in the pending appeals;

iv) The aforesaid arrangement is being made so that the appellant can have access to his minor daughter and also to ensure that the childs education does not suffer in any way during the week.

18. The appeals are, accordingly, disposed of with the aforesaid modifications of the interim orders passed by the High Court and save as aforesaid, all the other interim directions shall continue to remain operative.

19. Since, in terms of our earlier directions, the expenses of the respondent and Anisha for coming from Bombay to Delhi and other litigation expenses is said to have been deposited by the appellant with the Registry of this Court, the respondent shall be entitled to withdraw the same. There shall be no further order as to costs in these appeals.