Court: Delhi High Court
Bench: JUSTICE Indermeet Kaur
Dr.Rakesh Kapoor vs Mrs.Sapna Kapoor on 15 July 2011
Visitation rights granted for twice a month to estranged father of three year old child of parties for a period of one hour on each visitation. Order revised and visitation granted for thrice a month and for 2 hours.
1. By way of this petition, the petitioner has impugned the order of the Family Court dated 17.9.2010 which was on an application under Section 12 of the Guardian and Ward Act 1890 seeking modification of the order dated 17.8.2009. Vide order dated 17.8.2009 the Civil Judge had granted visitation rights for twice a month to the estranged father of the three year old child of the parties for a period of one hour on each visitation. The petitioner husband had sought modification of this order; the order had been modified and instead of visitation right of two times in a month, the visitation rights of three times in a month for two hours everyday had been afforded to the father.
2. Facts emanating are that Rakesh Kapoor and Sapna Kapoor had been married on 19.2.2007. A female child namely Ilaria Kapoor was born out of their wedlock on 16.5.2008. The child is in the care and custody of the mother. It is not in dispute that that after the birth of the child the mother had left the matrimonial home and from the hospital itself gone to live with her parents. It is also not in dispute that in the maintenance proceedings which have arisen between the parties a sum of `33,000/- per month is being paid by the petitioner husband to the respondent wife. The petitioner husband is an M.B.B.S doctor.
3. The respondent wife had opposed the application filed under Section 12 of the Guardian and Ward Act primarily on two grounds; the first ground was on maintainability and the second ground was right of the father to meet the child. Her contention being that since the child was of tender years and her husband had bad habits; he was a drug addict, the access of the father to his child would be injurious to the growth of the child and would in fact have a negative influence upon her. These allegations find mention in the impugned order. It is not in dispute that the petitioner husband is an M.B.B.S. doctor and he is earning a handsome salary that is why he has been directed to pay `33,000/- per month to his wife; which order is being complied with. In these circumstances, it is difficult to believe that an M.B.B.S. doctor who is admittedly earning such a handsome amount is a drug addict. These appear to nothing more than allegations and are not appreciated. The photographs taken by the petitioner husband at the time when he was permitted visitation with his daughter have been placed on record. The father and the child both appear to be in a happy mood; child is comfortable in the arms of her father; her grandmother is also depicted in a photograph.
4. At the threshold, learned counsel for the respondent has argued on the maintainability of the petition. Reliance has been placed upon a judgment of the Apex Court report in JT 2010(7) Supreme Court 514 to support his submission that the remedy available to the petitioner against the impugned order is not a petition under Article 227 of the Constitution. This argument has been refuted by learned counsel for the petitioner who states that a party cannot be left remediless; the impugned order can admittedly not be the subject matter of an appeal neither does a remain lie against the said order. The only remedy available to the petitioner is to file a CM(M). Article 227 of the Constitution is a writ jurisdiction available to the High Court to rectify a patent illegality or injustice to a party and when there has been a gross or manifest failure of justice. The impugned order has recorded that the parties have appeared before the court and efforts have been made for re-conciliation; there is nothing adverse which has been noted about the conduct or the attitude of the husband which in any manner lead to the conclusion that the husband is not in a fit frame of mind to meet his child or the meeting of the father with his child would otherwise hamper or negative the growth of the child. Time and again the courts have held that merely because of the war between two parents the child should not be made a victim and a meaningful exposure should be granted to the child to meet and have access to both his parents if there is nothing adverse against the estranged parent. This is productive and in fact necessitated for the growth of the child.
5. In this background it would be necessary to modify the impugned order which has granted two hour visitation right to the father on three Saturdays of a month and that also in the court premises which in no manner can be said to be a congenial or comfortable atmosphere for the child.
6. The impugned order is accordingly modified; the petitioner father is granted permission to take the child to his residence on all the three aforenoted Saturdays of the month (except second Saturday); he will pick up the child at 10.00 AM from the residence of his wife and will drop back the child not later than 6.00 PM in the evening. This time would enable the father to interact with his child in his home where the child will be able to respond to her father in a more amiable manner. It is clarified that any observation made herein would not affect the merits of the case. With these directions, the petition is disposed of.