Indira Khurana vs. Prem Prakash

Indira Khurana vs Prem Prakash on 1 October 1995 Delhi High Court Indira Khurana vs Prem Prakash on 1 October 1995 Equivalent citations: 60DLT 633 Author: M Sarin Bench: M Sarin JUDGMENT Manmohan Sarin J 1) The petitioner by this revision petition assails the impugned order dated 9.8.1995 passed by Mr R.S. Khanna Guardian Judge whereby the learned Judge directed the petitioner to send the children i.e. two daughters to the respondent father from 10 a.m. to 6 p.m. on Sundays. Further that the respondent would return the children to the petitioner at 6 p.m. on the same day. The above order was passed on the respondent s application for visitation rights 2) Learned Counsel for the petitioner has assailed the impugned order mainly on the ground that the learned Guardian Judge allowed the application of the respondent and granted the visitation rights and interim custody to the respondent during that period without ascertaining the wishes of the children. Learned Counsel for the petitioner assailed the order on the ground that it was the duty of the Guardian Judge to personally meet the children ascertain their wishes and then only decide whether it would be in welfare of the children to grant visitation rights to the respondent 3) Learned Counsel for the petitioner submitted that the daughters viz. Radhika aged 131 2 years and Nitika aged 12" years were fairly matured and capable of making an intelligent preference. The learned Guardian Judge should have ascertained their wishes and attempted to find out the causes as to why the children were not willing to meet or have anything to do with their father. The impugned order it was submitted was against the welfare of the children. It was submitted that the respondent apart from treating the petitioner with utmost cruelty had also been cruel to the children. Reference was made to an incident when respondent allegedly beat up Radhika with a stick. It was stated that the children were petrified of the respondent and in fact used to either feign sleep or huddle in a corner when the respondent used to come home 4) Counsel for the petitioner in support of his submission relied on titled Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi. In the cited case the Supreme Court granted custody to the maternal uncle instead of the father. This was a case where the mother had died. Father was facing criminal charges under Section 498 A of Indian Penal Code. The Hon ble Judges of the Supreme Court had spoken to the children and found them independent and more matured then their age. Children were bitter about their father and narrated various episodes of ill treatment of the deceased mother at the hands of their father. Children were unwilling to live with their father inspite of persuation by the Court. The Court assessing the state of mind of children reached the conclusion that it would not be in the interest and welfare of the children to hand over their custody to the father. The Supreme Court while granting custody to the maternal uncle granted visitation rights to the father who was permitted to meet the children on holidays or any other day with prior notice and to take the children out of the appellant s house for recreation entertainment or for shopping with the concurrence of the children. The Court further held that in due course if he is able to win over the love and affection of the children he would be at liberty to move this Court Indian Kanoon regarding modification of the order for custody Indira Khurana vs Prem Prakash on 1 October 1995 5) Counsel for the petitioner next relied on 1993(2) Sc 6=lDmc 135titled Chandrakala MenonAnd Anr. v. Vipin MenonRelying on the above decisions Mr. Kataria Learned Senior advocate submitted that in all the above cases the Court prior to passing of any order had ascertained the wishes of the children by talking to them. Further that the wishes of the children was a weighty factor to be considered. The learned Guardian Judge having not done so the impugned order was vitiated with material irregularity. Mr. Kataria further submitted that the children were so petrified of the respondent father that on Sunday when they were to be taken to the house of Mr. R.L. Tandon the younger daughter they become extremely uncomfortable and developed nausea. Learned Counsel for the petitioner thereore submitted that the impugned order deserved to be set aside 7) Learned Counsel for the respondent submitted in reply that the allegations of ill treatment cruelty and violent behavior made against the respondent were totally false. The petitioner had been tutoring the children and poisoning their mind against the respondent. Respondent also referred to a memorandum of understanding dated 16.12.1993 that had been arrived at between the parties and from which the petitioner was resiling Indian Kanoon Indira Khurana vs Prem Prakash on 1 October 1995 8) It would be relevant to reproduce the terms of the memorandum of understanding dated 6.12.1993 arrived at between the parties. "MEMORANDUM of Understanding We were married on 24.1.1981 and have now been living separately since 4.12.1991. We met today to finally settle our future relation but could not reach any conclusion either about cohabitation or about formal separation. However following understanding was arrived at in regard to our daughters named Radhika and Nitika.Both of us recognise that children need the love and attention of both parents for a homogenous growth and thus each parent would have free access to the children wherever they are.For the time being the children would continue to stay with their mother during weekdays and with their father on weekends holidays.During vacations each parent shall keep the children for such period as is agreed between them consistent with the wishes and the welfare of the children. Their trips outside Delhi during vacations shall be in consultation with each other.The children shall not be removed from outside India by one parent without the consent in writing of there other.Neither parent would speak ill against the other or try to keep the children away from the other. Both would do their utmost to keep them happy and well looked after at all times. In witness we set our hands this 6th day of December 1993 Counsel for respondent submitted that it is only when the question of grant of custody is involved that the ascertainment of the wishes of the children is important. However visitation rights can be granted without any compulsive requirement of ascertaining the wishes of the children by meeting them. It was urged that the disinclination of children to meet the father was a result of the continues poisoning of their mind by the mother and such wishes should not be given any weight since it was in the larger interest of the children that they continue to have the love and affection of both the 9) The petition had come up before me on 16.8.1995 when notice of the same was issued on the ground limited to whether even for grant of limited custody or visitation rights prior ascertainment of the wishes of the children is essential Interim directions were issued for the petitioner to send the children on Sundays to the house of the Counsel for the respondent for the meeting with variation in time 10) Having considered the rival contentions I find that in all the cases cited by the petitioner decision on grant of custody was involved. It goes without saying that when the grant of custody is concerned ascertainment of wishes of the children especially when they are at an age to make an intelligent preference is a relevant and germane consideration. In none of the cited cases the question of visitation rights only was involved. In the cited cases the Court was considering the grant of custody and while doing so had also made provision for visitation rights. It is also significant that in these cases visitation rights were granted to the spouse who did not have the custody. This is because there should be very strong reasons to deny visitation rights to any of the spouse. These could be cases say where the grant of visitation rights could be injurious to the mental and physical health of the children 11) The Guardian Judge while exercising his judicious discretion in granting visitation rights can certainly ascertain the wishes of the children by meeting them. In fact it would be desirable to do so However omission to do so in case of visitation rights cannot be fatal especially when there is Indian Kanoon Indira Khurana vs Prem Prakash on 1 October 1995 sufficient material on record available otherwise supporting grant of visitation rights. This is so in the instant case. The memorandum of understanding had been entered into on the 6th day of December 1993. The petitioner has not pointed out anything attributable to respondent after 6.12.1993 which would render grant of visitation rights to respondent injurious to the mental and physical health of the children. The petitioner in terms of memorandum was willing to share the vacation and give visitation rights to the respondent. Moreover the expression of wishes of the children is very often conditioned by the persuation of the party in whose exclusive custody the children have been. The Court therefore while ascertaining the mind of the children has to be conscious of the fact that what the children say could be the reflection of the views of the estranged spouse and induced by him her 12) As observed earlier I had as an interim measure directed children to be taken to the house of Mr. R.L. Tandon Advocate for the meeting with the respondent. This was in view of the disinclination of the children to go to the respondent s house. I had called the children in my chamber on 6.9.1995 as two Sundays had elapsed from the date of the interim order with a view to assess the progress as also to ascertain and understand the causes of apparent disinclination of the children to meet the respondent. After talking to Nitika the younger daughter and Radhika the elder one together as well as with Radhika separately I am of the view that their resentment to meet the respondent would get diluted with passage of time and contact with the respondent. The respondent father should try to win their affection and assuage their hurt feelings. The reactions and the views of the children to a large extent stem from what they perceive as the desertion of their mother and their neglect by respondent. I had explained to both the children the desirability of having the love and affection of the respondent father for their future lives and impressed upon them that the respondent must be given an opportunity to make amends if they feel that they had been wronged. It was explained to the children that it was in their interest and welfare that the link with the father was not broken. After talking to the children and hearing them regarding their grievances I am of the view that it would be in their interest and welfare that the respondent continues to have the visitation rights. However in the facts and circumstances of this case the impugned order would need some variation. At the initial stages a meeting with the respondent from 10 a.m. to 6 p.m. on Sundays would not be conducive in bridging the gap between the respondent father and children. Let both the children be taken by the petitioner every Sunday to the house of Mr. R.L. Tandon Advocate from 2 p.m. to 7 p.m. to meet the father respondent for the next four months. During the visitation it would be open to the respondent father to take the children out of the house for any entertainment or recreation. The petitioner would pick up the children from the house of Mr. R.L. Tandon Advocate. Upon the expiry of four months the visitation rights would be in accordance with the impugned order. The gracious offer of hospitality by Mr. R.L. Tandon Advocate deserves to be appreciated 13) In the view that I have taken the revision petition is liable to be dismissed. Even otherwise the main grievance of the petitioner does not subsist any longer since wishes and concerns of the children have been ascertained and assessed by talking to them. The revision petition is dismissed with the variation in meeting time as ordered Indian Kanoon 

Summary: Introduction:  Parents play a significant role in child development. The relationship between the parent and child helps in defining the personality of the child. But for this both the parents are required to guide their children, which is quite difficult if the parents are staying separately. In the case of Indira Khurana v. Prem Prakash, it talks about the Judicial discretion exercised for the welfare of the children.  Facts: Both the parties were married to each other on 24th January 1981 and two daughters were born out of wedlock namely Radhika who aged 13 and half years and Nikita aged 12 years.  On 6th December 1993, a memorandum of understanding was formed between the parties stating various clauses, one such clause stated that the children would stay with their mother and can stay with father on weekends and holidays.  The respondent filed an application for visitation rights, in accordance to which the Guardian Judge, Mr. R.S. Khanna on 9th August 1995 passed an impugned order directing Ms. Indira Khurana to send their children to Mr. Prem Prakash (father) (hereinafter referred to as the “respondent”) from 10 am to 6 pm on Sunday.  Ms. Indira (hereinafter referred to as the “appellant”) filed an appeal challenging the order of the Guardian Judge on the grounds that the judge allowed the application without taking into consideration the wishes of the children, thus being against the welfare of children.  Issue: Whether, in case of grant of limited custody or visitation rights, prior ascertainment of the wishes of the children is essential. Contentions raised: Mr. Kataria the learned counsel for the petitioner contended that both the children were fairly mature and the Judge should have to find the cause as to why they were not ready to meet the respondent. Further, it was submitted that the respondent was cruel not only to the petitioner but also to the children where once he beat one of his children with a stick making the children feel petrified in his presence. The counsel to support his contentions relied on various cases as Kirtikumar Maheshshankar Joshi v. Pradipkumar Joshi, Chandrakala Menon &amp; Anr v. Vipin Menon &amp; Anr, and, Mrs. Prabhati Mitra v. D.X. Mitra wherein all the above cases the Court had talked to the children first and only after ascertaining their wishes passed the order. As the Guardian Judge failed to do so, the order was vitiated with material irregularity and deserves to be set aside.  On the other hand, the counsel for the respondent contended that all the allegations made by the petitioner relating to ill-treatment, cruelty, and violent behavior were false and it was the petitioner who is poisoning the minds of children. Further, it was contended that only in the case of grant of custody one may need to know the wishes of children but it may not be so in granting visitation rights.  Observations:  The Court observed that the cases put forth by the petitioner in support of her contentions were all related to grant of custody, in none of the above the question of visitation rights are generally granted to the person having no custody and one may need a strong reason to deny such rights if it injures the mental or physical health of the children. Observing the memorandum of understanding the Court stated after 6th December 1993 the petitioner failed to point out anything that would render mental or physical injury to the health of children by the respondent.  Further, the Guardian Judge shall ascertain the wishes of children before granting visitation rights but, omission of which cannot be said to be fatal. Moreover, as the children stay with the petition there is a possibility that their wishes may be persuaded by the petitioner.  Judgment: The Court based on the contentions and after discussing the same with the children stated that it would be in their interest and welfare that the respondent possess visitation rights. However, the Court made some variations in the impugned order whereby initially for bridging the gap between children and their father the children for meeting their father shall be taken to Mr. R. L. Tandon’s (advocate) house on every Sunday from 2 pm to 7 pm for the coming 4 months. During this time the respondent may take children out for entertainment or recreation purposes and after the completion of four months, the impugned order shall be followed.  Conclusion: The Court dismissed the petition on the grounds that the main reason for filing the case did not subsist anymore as the wishes and concerns of children have been ascertained. The Court upheld the order of the Guardian Judge by making variations in the meeting time and dismissed the revision petition.   Edited By: Purnima Ojha Reference:  Kirtikumar Maheshshankar Joshi v. Pradipkumar Joshi, AIR 1992 SC 1447 Chandrakala Menon &amp; Anr v. Vipin Menon &amp; Anr, I 1993(41) BLJR 538 Mrs. Prabhati Mitra v. D.X. Mitra, Appeal No. 182 of 1983Indira Khurana v. Prem Prakash, https://indiankanoon.org/doc/143531