In the Delhi High Court: Equivalent citation: 60 (1995) DLT 633 Petitioner: Indira Khurana Respondent: Prem Prakash Decided On: 1st October, 1995 Bench: Hon'ble Justice M. Sarin
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 & Anr v. Vipin Menon & 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 & Anr v. Vipin Menon & 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/
