Under which circumstances court can deny custody of the child to the mother?

The net result of foregoing discussions goes to show

that Ms.Janhavi was found to be hurt and injured on 28th January

2017 and 18th February 2017 when her medical examination was

done by the competent Medical Officer.   It is averment of her

father   that   the   respondent­mother   is   the   cause   behind   those

wounds.  There is duly sworn testimony to this effect on record.

As against this, it is the contention of the respondent­mother that

Ms.Janhavi was not in her custody on those two dates and she has

not wounded Ms.Janhavi.  Be that as it may, but the case in hand

appears   to   be   a   clear   case   of   a   child   abuse.     I   have   already

mentioned   that   welfare   of   a   child   is   paramount   consideration

while deciding the issue regarding the custody of a minor child.  In

the case in hand, Ms.Janhavi is seen to have been traumatized and

physically injured not once but on two occasions in the process of

giving access.   Report of her psychological evaluation done by a

competent disinterested Child Psychologist will give some clue, as

to who was the author of wounds suffered by Ms.Janhavi and the

reason of her apprehension and reluctance to join company of her

mother.  Ms.Janhavi, since her birth, is undoubtedly in custody of

her father­the petitioner.   As such, looking to the aspect of her

safety and wellbeing, she needs to be continued in his custody till

her psychological evaluation by the expert Child Psychologist for

ascertaining her behavioral issues and issue of a child abuse.  The

respondent­mother is objecting appointment of Child Psychologists

from the list given by the petitioner­father.  Her learned Advocate

states that by tomorrow, he will submit another list of expert Child

Psychologists for consideration of this Court.   Keeping in mind

welfare of minor female child Ms.Janhavi, I proceed to pass the

following order as an interim measure :

(i) Until   further   order,   impugned   order   dated   25th  April

2017 passed by the learned Family Court, Mumbai so far

as   relates   to   granting   access   of   Ms.Janhavi   to   the

respondent/mother for the period from 29th May 2017 to

3 rd June 2017 is stayed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.5700 OF 2017

Anirudha Herwadkar V/s. Namita Herwadkar 

CORAM : A.M.BADAR J.

DATED : 29th May 2017.

1 By this petition, petitioner­father of six and half years

old female child Janhavi is challenging the order dated 25th April

2017 passed by the learned Family Court, Bandra in Petition No.D­

77 of 2012 filed by the respondent herein­mother of the female

child named Janhavi.

2 The impugned order dated 25th April 2017 is directing

the   petitioner­father   to   give   access   to   the   respondent­mother

during summer vacation for the period from 29th May 2017 to 3rd

June   2017   by   taking   minor   female   child   Janhavi   from   the

Marriage Counselor attached to the Family Court, on 29th  May

2017.

3 Heard   the   learned   Advocate   appearing   for   the

petitioner­father of Ms.Janhavi.   She argued that Ms.Janhavi is

taking education in IInd standard.  It is submitted that marriage

between the parties was solemnized in the year 2007 and Janhavi

was born out of this wedlock in the year 2010.   The learned

Advocate for the petitioner­father further argued that finally on

23/03/2012, respondent­mother deserted the petitioner­father so

also Ms.Janhavi, which has resulted in filing of the petition for

divorce   as   also   for  permanent   custody   by   the   petitioner­father

before the Family Court.  It is further argued that during pendency

of this petition, access was regularly given and Ms.Janhavi was

used to be given in custody of the respondent­mother from time to

time as per agreed terms between the parties.  It is submitted that

Ms.Janhavi used to be with her mother on first and third Saturday,

so also in winter and summer vacation.

4 According to the learned Advocate for the petitionerfather

on 28th  January 2017 at the premises of residence of the

petitioner, Ms.Janhavi was traumatized by the respondent­mother.

She   was   then   medically   examined   by   the   petitioner   on   28th

January 2017 itself and she was found to have suffered injures.

Reliance is placed on affidavit on record page 169 to demonstrate

how   Ms.Janhavi   came   to   be   injured   at   the   hands   of   the

respondent­mother.   It is further argued that the same incident

came to be repeated on 18th February 2017 also and, therefore, the

petitioner­father   got   his   minor   daughter   Janhavi   medically

examined.  My attention is drawn to injury certificate at page 162

and 180 of the record apart from pleadings in affidavit.  With this,

the   learned   Advocate   appearing   for   the   petitioner   vehemently

argued   that   the   application   for   recall   of   access   filed   by   the

petitioner ought to have been granted by the leaned Family Court

instead   of   granting   access   to   the   respondent­mother   in   the

summer vacation.   It is further argued that though the learned

Judge of the Family Court has accepted the contention of the

petitioner­father   that   Ms.Janhavi   needs   to   be   taken   to   Child

Psychologist for her psychological evaluation in order to ascertain

the  reason  of  her refusal  to  join  company  of  her mother,   the

learned   Judge   erred   in   appointing   Dr.Harish   Shetty   for   this

purpose.   It is pointed out that Dr.Harish Shetty is a qualified

Child Psychiatric and not the Child Psychologist.   The learned

Advocate for the petitioner further submitted a list of expert Child

Psychologists and contended that the learned Judge of the Family

Court   ought   to   have   appointed   some   Child   Psychologist   for

psychological evaluation of Ms.Janhavi in order to ascertain why

she is not ready to go with her mother during the period of access.

It   is   further   argued   that   granting   access   for   summer   vacation

without   waiting   for   report   of   the   Child   Psychologist   is   totally

contrary to the interest of the minor female child.

5 The documents tendered by the learned Advocate for

the   petitioner  during   the   arguments   i.e.   Bio­Data   of   Dr.Harish

Shetty and list of Expert Child Psychologists are taken on record.

6 I have also heard the learned Advocate appearing for

the   respondent­mother   of   minor   female   child   Ms.Janhavi.     He

drew my attention to the modified consent terms on record page

167 and contended that this modification in the consent terms was

done on 16th February 2017.  The learned Advocate argued that if

really Ms.Janhavi was physically injured by her mother on 28th

January 2017, then nothing prevented the petitioner­father from

agitating   this   grievance,   particularly   when   consent   terms   were

modified on 16th  February 2017.   The learned Advocate further

argued that as alleged by the petitioner­father of Ms.Janhavi one

of the incident of physical torture to Ms.Janhavi took place in

presence of the Marriage Counselor attached to the Family Court.

However,   the   petitioner­father   has   not   placed   on   record   any

evidence to demonstrate that such incident took place within the

premises of the Family Court.  Record of that event, if any, made

by the Marriage Counselor is not placed on record, nor an affidavit

of the Marriage Counselor is produced by the petitioner­father.  It

is further argued on behalf of the respondent­mother that on 28th

January 2017 and 18th February 2017 or immediately prior to that

Ms.Janhavi was not in custody of the respondent­mother.  As such,

false allegations are made with ulterior motive to the effect that

Ms.Janhavi was traumatized by her own mother.   It is further

argued by the learned Advocate appearing for the respondentmother

that access to Ms.Janhavi by her mother was regularly

given since pendency of legal proceedings and at no point of time,

any complaint of ill­treatment to Ms.Janhavi by her mother was

made.  No adverse report was ever placed on record.  It is further

argued that the petitioner had, in fact, subjected Ms.Janhavi for

psychological evaluation which prompted her mother to move an

application and accordingly, in the impugned order it is observed

that an undertaking was given by the father that he will not make

his daughter to undergo psychological evaluation.  With this, the

learned  Advocate  for the  respondent  argued  that  as  access  by

mother to Ms.Janhavi was a regular phenomenon, there  is  no

question of grant of ad­interim stay to the impugned order, so far

as access by him to minor female child is concerned.

7 I have carefully considered the rival submissions and

also perused the record made available.  

8 It is well settled that welfare of minor is paramount

consideration for deciding even a temporary custody of  a minor.

Minors cannot be treated as chattel for claiming custody.  Powers

to grant access, visitation right or custody of a minor are not to be

exercised in the interest of parents, but in the interest and welfare

of a minor child.  While handing over custody of a minor child, the

Court is required to keep in mind that health, safety and overall

welfare of the child will properly taken care of by the parent to

whom the custody or access is being given.  What will be for the

welfare of the minor will depend upon the facts and circumstances

of   each   particular   case.     In   the   case   in   hand,   Miss.Janhavi   is

reported  to  be   just  6  ½ years   old   and  she  is  undisputedly   in

custody of her father­petitioner since her birth.  Allegations are to

the effect that she is being physically hurt and traumatized by her

mother­respondent.  According to her father, she is not willing to

join   company   of   her   mother   for   summer   vacation   access   and,

therefore,   she   needs   to   be   evaluated   psychologically   for

ascertaining reason thereof and till then she may not be given in

custody of her mother­respondent.

9 In the case in hand, medico­legal certificate dated 28th

January   2017,   which   is   a   part   of   record,   shows   that   on   28th

January 2017 upon examination of Ms.Janhavi ­ a minor female

child of six and half years age, the attending Medical Officer had

found that she had suffered multiple bruises apart from tenderness

over her arms, root of nose and back.  At record page 169, there is

an affidavit of the petitioner­father filed before the Family Court,

Mumbai.   Paragraph 7 of that affidavit dated 3rd  March 2017 is

relevant.   It is averred in paragraph 7 of that affidavit by the

petitioner­father that on 28th  January 2017 at about 11.45 a.m.,

the mother started pulling Janhavi, who was holding him tightly

by the shirt, but the mother could not pull Ms.Janhavi away.  It is

averred that Ms.Janhavi started crying loudly and because of force

applied, shirt of the petitioner­father was torn.  In paragraph 7 of

the   affidavit,   it   is   further   averred   that   the   petitioner  tried   for

almost   20   minutes   to   convince   Ms.Janhavi   to   sit   with   the

respondent­mother.  However she refused to comply that request.

This,  prima   faice,  indicates   the   serious   trauma   undergone   by

Miss.Janhavi,   when   she   was   being   given   in   custody   of   the

respondent­mother.     She   was   ultimately   hurt   physically   in   the

incident of that date.

10 At   record   page   180,   there   is   another   medico­legal

certificate dated 18th  February 2017 in respect of minor female

child   Ms.Janhavi.     This   certificate   shows   that   Ms.Janhavi   was

found   to   be   physically   injured   at   the   time   of   her   medical

examination on that day.  She seems to have suffered contusions.

11 At record page 182 there is an affidavit, which was

filed by the petitioner­father before the trial Court and paragraphs

14,15 and 16 of that affidavit are relevant.  Perusal of those shows

that on 18th February 2017, Ms.Janhavi returned to the petitionerfather

from her mother on completion of access.   The petitioner

averred in that affidavit that at that point of time, Ms.Janhavi told

him that she do not want to go for access to her mother and

pulling her by her mother is hurting her.  It is further averred by

the petitioner­father in that affidavit that on the next day, while

giving head massage to her daughter, his daughter told him that

her   mother   is   hitting   her   or   pinching   her   and,   therefore,   she

became scared.   Pleadings in that paragraph 16 further reflects

forcible   tutoring   to   Ms.Janhavi   by   her   mother   against   the

petitioner­father.

12 On these pleadings and material on record, it is seen

from the impugned order passed by the learned Family Court that

the Family Court has accepted the request of the petitioner­father

to get his daughter Ms.Janhavi evaluated by the Child Psychologist

by securing the services of the Child Psychologist for that purpose.

It was contention of the father before the Family Court that his

minor daughter is traumatized and hurt by the respondent­mother

and, therefore, orders granting access of Ms.Janhavi to her be

recalled.     According   to   the   father,   his   minor  daughter   is   very

scared and apprehensive to join company of her mother.

13 Accepting the request and contentions of the father of

Ms.Janhavi,   the   learned   Judge   of   the   Family   Court   by   the

impugned   order   was   pleased   to   appoint   Dr.Harish   Shetty   by

describing him as 'Child Psychologist'.  The Bio­Data of Dr.Harish

Shetty placed on record today by the petitioner­father shows that

Dr.Harish   Shetty   is   MD   in   Psychiatry   and   he   is   'Psychiatrist'

practising in Mumbai.  Perusal of the impugned order shows that

the   learned   Judge   of   the   Family   Court   has   not   enquired   or

examined   whether   Dr.Harish   Shetty   is   a   Psychologist   and

particularly   a   Child   Psychologist.     Without   undertaking   this

exercise, he came to be appointed for evaluating psychology of

Ms.Janhavi – a female child of six and half years of age.   Prima

facie, Dr.Harish Shetty appears to be a qualified psychiatrist and

not a Child Psychologist.

14 Two medico­legal certificates on record,  prima facie,

shows that Ms.Janhavi has suffered child abuse which, according

to her father, is caused by her mother.  Resistance of Ms.Janhavi

to join company of her mother, as pleaded by the petitioner­father

has occasioned the learned Judge of the Family Court to deem it

necessary   to   appoint   a   Psychologist   for   her   psychological

evaluation.     However,   instead   of   appointing   an   expert   Child

Psychologist, Dr.Harish Shetty, a practising Psychiatrist has been

appointed   by   the   learned   Judge   of   the   Family   Court   for   this

purpose.  At this juncture, it needs to be noted that children facing

several   emotional   problems   such   as   depression,   anxiety,   child

abuse, sexuality, etc. requires necessary care and help from a Child

Psychologist, who spend time assessing the depth of such problem

by using his skills and carving out solutions for such problems.  A

Psychologist is an expert in the study of human behaviour.   A

Child Psychologist specializes in undertaking the though process

and actions of children and interpreting them to guide appropriate

mental health treatment.  Clinical Child Psychologist focus on the

diagnosis   and   treatment   of   mental   disorder   ranging   from

depression to schizophrenia by interviewing patient, conducting

tests, etc.  In case of substance abuses, a Child Psychologist devises

a   treatment   plan   and   may   implement   behaviour   modification

program.     Counseling   Child   Psychologist   takes   a   behavioral

approach to emotional problems of children.   Psychologist treats

emotional   and   mental   suffering   in   patient   with   behavioral

intervention.   As agaisnt this, a Psychiatrist is a trained medical

Doctor and he take care of medication management of a patient as

a cause of treatment by prescribing medicines.   In the case in

hand, what is required is report from a Child Psychologist  on

evaluating behaviour of Ms.Janhavi to analysis her conduct in her

resistance and refusal to join company of her mother­respondent.

However, it appears that inadvertently though the learned Judge

of the Family Court accepted the contention of the petitionerfather

in this regard, has erred in appointing a 'Psychiatrist' in

doing the work as 'Child Psychologist'.

15 During course of arguments, it is ascertained from the

learned Advocates appearing for both parties that Ms.Janhavi is

taking education in IInd Standard in a school at Mumbai.   This

distance can be traveled within a time of about half an hour from

the   house   of   the   respondent­mother   as   stated   by   her   learned

Advocate.   The access given by the learned Judge of the Family

Court to the mother is from 29th May 2017 to 3rd June 2017.  A

statement   is   made   at   bar   by   the   learned   Advocate   for   the

petitioner­father that in the event nothing  adverse is found  in

psychological evaluation of Ms.Janhavi by the competent Child

Psychologist, the petitioner­father will give compensatory access to

respondent­mother in respect of this period.   The statement so

made is accepted.   Thus, in future, if nothing adverse is found,

Miss Janhavi can be given in temporary custody of her mother

even after reopening of the school.

16 The net result of foregoing discussions goes to show

that Ms.Janhavi was found to be hurt and injured on 28th January

2017 and 18th February 2017 when her medical examination was

done by the competent Medical Officer.   It is averment of her

father   that   the   respondent­mother   is   the   cause   behind   those

wounds.  There is duly sworn testimony to this effect on record.

As against this, it is the contention of the respondent­mother that

Ms.Janhavi was not in her custody on those two dates and she has

not wounded Ms.Janhavi.  Be that as it may, but the case in hand

appears   to   be   a   clear   case   of   a   child   abuse.     I   have   already

mentioned   that   welfare   of   a   child   is   paramount   consideration

while deciding the issue regarding the custody of a minor child.  In

the case in hand, Ms.Janhavi is seen to have been traumatized and

physically injured not once but on two occasions in the process of

giving access.   Report of her psychological evaluation done by a

competent disinterested Child Psychologist will give some clue, as

to who was the author of wounds suffered by Ms.Janhavi and the

reason of her apprehension and reluctance to join company of her

mother.  Ms.Janhavi, since her birth, is undoubtedly in custody of

her father­the petitioner.   As such, looking to the aspect of her

safety and wellbeing, she needs to be continued in his custody till

her psychological evaluation by the expert Child Psychologist for

ascertaining her behavioral issues and issue of a child abuse.  The

respondent­mother is objecting appointment of Child Psychologists

from the list given by the petitioner­father.  Her learned Advocate

states that by tomorrow, he will submit another list of expert Child

Psychologists for consideration of this Court.   Keeping in mind

welfare of minor female child Ms.Janhavi, I proceed to pass the

following order as an interim measure :

(i) Until   further   order,   impugned   order   dated   25th  April

2017 passed by the learned Family Court, Mumbai so far

as   relates   to   granting   access   of   Ms.Janhavi   to   the

respondent/mother for the period from 29th May 2017 to

3

rd June 2017 is stayed.

(ii) Stand   over   to   30th  May   2017   in   order   to   enable   the

respondent to submit list of expert Child Psychologists in

order to enable this Court to determine and nominate the

expert Child Psychologist for evaluating psychology of

Ms.Janhavi.

  

(A.M.BADAR J.)

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