Abhorrence towards father is result of brainwashing, Delhi HC rules

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT:
CRP No.276/2003

Date of Hearing : March 15, 2004.
Date of Decision: April 12, 2004.

Hindu Marriage Act 1955 -Custody of the Minor Child

Paramjit Singh Lamba …Petitioner

through Mr. J.P. Singh, Advocate

Versus

Smt. Prabjot Kaur …Respondent

through Mr. K. Sultan Singh

with Mr. Manish Kumar, Advocates

CORAM:

HON’BLE MR. JUSTICE VIKRAMAJIT SEN

1. Whether reporters of local papers may be allowed to see the
Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VIKRAMAJIT SEN, J.

1. This Revision brings to the surface an important question which
universally affects and afflicts all persons belonging to a broken
home, viz. the custody of the minor child of the two warring spouses.
It cannot be over-emphasised that the paramount consideration in all
such situations is the well-being of the child. It is this aspect
which must be kept in focus and the individual `rights’ of the
parents would recede into the shadows. It is but a human frailty for
the Judge to be prejudiced by the reproachable and unbecoming conduct
of a particular spouse while determining the manner in which the
child’s time is to be apportioned. It has been noticed that the
Guardian Judge does not follow a uniform practice in this regard in
that sometimes the parent who does not have the custody of the child
is granted a meeting of a duration of one or two hours in a month,
that too in the uncomfortable and uncongenial environment of the
Court, while in other cases weekly visitation or access for several
hours is ordered. It is trite to state, but necessary to reiterate,
that it is the welfare of the child which must be kept in the fore,
either while granting custody or visitation to the parent who does
not have the custody. It must also be highlighted that orders of this
genre are inherently interlocutory in nature, subject to modification
from time to time. It is not essential that the Court accepts consent
terms presented to it by the parents. The Court is also not powerless
to cancel or modify an arrangement approved by it earlier, if change
in circumstances so compel.

2. The Statute proclaims the father to be the natural guardian of the
child but clarifies that till he/she attains the age of five years,
his/her custody would ordinarily be granted to the mother. The
Legislature merely recognises the universal experience and
observation that the mother is better equipped and inclined in
bringing-up the children. Homo sapiens are the most advanced and
intelligent species but there is some commonality with other animals
amongst whom it is ubiquitously the mother which cares for the
offspring upto adolescence. The Hon’ble Supreme Court, however, has
clarified in Kumar V. Jahgirdar vs. Chethana Ramatheertha, 2004(1)
Scale 149 that it does not subscribe to the observations that a
mother is always preferable to the father so far as the custody of
the child is concerned. Although the Hon’ble Supreme Court had found
that the child had not been brainwashed in the case before it, it was
expressly aware of the reality that the child’s mind is invariably
poisoned against the other parent. Such a practice must be
unreservedly deprecated, as it is wholly deleterious to the welfare
of the child concerned and to the development of the personality.
Every child requires exposure to and influence of both his parents.
Visitation in Court precincts should be resorted to where there is no
other option, or where the conduct of a parent is deviant or
unnatural thereby necessitating jural monitoring.

3. In the present case the Father has for various reasons, which I
need not discuss threadbare, not had much interaction with his
daughter. It has been explained that he was pursuing studies in the
United States of America during the infancy of his daughter.
Visitation between 3:00 P.M. to 4:00 P.M. on the last Saturday of the
month, in the Court precincts, appears to have been granted on
23.3.2001. The present Additional District Judge has taken an adverse
view of the fact that the Father did not assail the previous Order in
an Appeal or Revision. In my considered view, however, it would be
inappropriate to give a critical weightage to this fact. Assuming
that a parent was uncaring at a particular stage in the child’s life,
he/she should not be shut out for all times to come. As already
observed a decision should be taken not from the claim of the parent,
but from the standpoint of the child concerned, since there can be no
argument against the necessity for the child to spend time with both
parents. In the present case the fixation of only one hour in a month
has led to the consequence of the child refusing to meet her Father,
that is, the Petitioner herein. Such an abhorrence towards the Father
cannot but be the result of brainwashing by the Mother, which has
succeeded in large measure because of the extremely limited access of
the Petitioner with his daughter.

4. So far as the interests of the child are concerned it is
imperative that a meaningful exposure to both parents should be
ordained by the Court. One hour every month is clearly counter-
productive for the achievement of this objective, as this case
palpably manifests. The Court should endeavour to make a weekly
meeting possible and only insist that this should be in the Court
precincts where no other alternative is possible. It is only in rare
cases that such a location should be prescribed. The duration of the
meeting should be fixed so as to enable a healthy interaction between
the parent and child, and should not be reduced to a mere legal
formality. There is also no reason why a shorter visitation, say for
one hour, should also not be ordered on a week day so that there is
constant contact between the child and the parent. This may be
onerous or awkward for the parent who has custody, but in a
dismembered family, it cannot be avoided. The parents will eventually
evolve a system and develop a pragmatic and healthy attitude where
their lives continue in the smoothest manner possible even in such
adverse and unfortunate circumstances.

5. In the impugned Order the Additional District Judge has
understandably noted and has been adversely influenced by the fact
that the application for a change in the interim arrangement and for
custody of the child had been presented by the Father only on the
filing of the Petition under Section 13(1) (ia) of the Hindu Marriage
Act. This is also a reality, but the bluff of the parent filing such
an application can be countered by allowing access/visitation rights
to the child which the uninterested parent would eventually not fully
avail of. In such a case the parent would run the danger not only of
alienating the child forever, but also creating an occasion for
modification in the duration of child access.

6. I would allow the present Revision by increasing the access of the
Father to one hour every week, in the first instance. Since it is
evident that the daughter is presently inimical towards meeting her
Father, it is expected of the Respondent that she should create a
congenial atmosphere which would obviate the meeting/visitation to be
held in the Court of the Matrimonial/ Guardian Judge. If avoidable
bickering does not end, the parents would end up wasting the better
part of their lives in Court, and this should soon bring them to
their senses. Their folly, however, is no justification for not
endeavouring to achieve the best for the unfortunate child, who has
no role or say in the spousal spat.

7. The place of the weekly meeting is left to the Matrimonial/
Guardian Judge to determine. As has been observed, it is for the
Mother to ensure that the Daughter has a healthy interaction with her
Father, lest an opinion be formed that she is deliberately turning
the Daughter against her Father. If such an opinion is formed by the
Court, there would be no option available to the Court but to
award/transfer the custody to the Father in the hope that with the
change the child would adopt a more balanced and healthy attitude
towards both her parents. My faith that Counsel for the parties shall
both advise and assist in bringing about some sanity in their
respective clients will, I turst, not be in vain.

8. The Petition is disposed of with these observations. Parties to
appear before the Additional District Judge on 21st April, 2004.

April 12, 2004
(VIKRAMAJIT SEN)
JUDGE

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