Thus, it follows that the issue of custody of minor children cannot be decided by the Courts dealing with Petitions under the said Act or Petitions dealing with custody/visitation rights of children only on the basis of consensus or consent of the parties. Even under Rule 3 of Order XXIII of the Civil Procedure Code, 1908, a compromise can be recorded provided it is otherwise legal and is not against the public policy. In a case where contesting parties to a Petition under the said Act or under any other Enactment place compromise on record dealing with custody and visitation rights in relation to minors, the Court cannot the accept compromise mechanically. Before accepting the compromise and permitting parties to act upon the compromise, the Court has to apply its mind to the well settled law. What is paramount is what is conducive to the welfare of the children. Therefore, it is the duty of the Court to consider whether the compromise is for the welfare of the children. As stated earlier, the consent of the parties and even the personal law dealing with the issue of custody of children cannot and must not supersede paramount considerations laid down under Section 17 of the said Act. The Court has to be very cautious especially when parties by consent agree to disturb the custody of the children.
IN THE HIGH COURT OF BOMBAY
Family Court Appeal No. 76 of 2016
Decided On: 08.12.2016
Appellants: "A"
Vs.
Respondent: "B"
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and Anuja Prabhudessai, JJ.
Citation: 2017(6) MHLJ 134
1. On the earlier date, we had put the parties to the notice that the Appeal itself will be disposed of finally at the stage of admission. Considering the controversy involved in the Appeal, we direct that in the judgment, the names of the parties shall be masked. The name of the Appellant shall be mentioned as 'A' and the name of the Respondent shall be mentioned as 'B'.
2. The issue involved concerns custody of two minor children of the parties. The male child was born on 29th October, 2006 and the female child was born on 1st January, 2000. It is not in dispute that the unfortunate male child suffers from Cerebral Palsy from birth and he is suffering from physical disabilities. It is stated that he is attending a special school.
3. A Petition was filed by the Appellant under Section 8 of the Guardians and Wards Act, 1890 (for short "the said Act") for custody of the children before the Family Court, Bandra at Mumbai. By the impugned judgment and order dated 15th July, 2014, the learned Judge of the Family Court has purported to dispose of the said Petition filed by the Appellant on the basis of statements made by the Respondent wife in an application dated 24th March, 2014 made by her in another Petition (Petition No. A2130/2010) filed by her seeking permission to withdraw the said Petition. The said Petition was filed for seeking a decree of divorce. By the impugned order, the learned Judge has purported to disturb the custody of the Respondent-mother of both the children. There are other directions issued under the impugned judgment and order regarding the payment of education and medical expenses, grant of access to the Respondent-mother to meet the minor children and other relevant aspects.
4. The question which arises for consideration is whether a Petition filed under Section 8 of the said Act praying for disturbing custody of the minor children can be disposed of by passing a drastic order of disturbing custody only on the basis of the consent of the contesting parties.
5. With a view to appreciate the submissions made across the Bar, it will be necessary to state here that to the Petition for custody filed by the Appellant, a written statement was filed by the Respondent-wife contesting the case made out by the Appellant - husband. In the written statement, it was contended that the Appellant-father being a Pilot working in Air India is very often away from the home and the handicapped child cannot be completely left in the care and custody of a third person. It is pointed out that the male child is attending a special school.
6. The Petition for custody was filed by the Appellant-husband on 23rd July, 2010. The aforesaid Petition being Petition No. A2130 of 2010 was filed by the Respondent-wife for decree of divorce.
7. An application was made by the Respondent-wife at Exhibit-43 in Petition No. A2130 of 2010 seeking permission to withdraw the said Petition with liberty to file a fresh Petition. A copy of the said application has been annexed to an affidavit filed by the Respondent at page 312.
8. As far as the Petition for custody is concerned, a copy of Roznama has been annexed to the Memorandum of Appeal. The Roznama shows that on 30th April, 2014 both the Appellant and Respondent filed affidavits in lieu of examination-in-chief which are at Exhibits 50 and 51 respectively in the proceedings.. Roznama further records that on 29th May, 2014 submissions of the parties were heard and the Petition filed by the Appellant was adjourned for judgment.
9. In the affidavit in lieu of evidence filed by the Respondent-wife, she has made a reference to averments made by the Appellant - husband on pages 28 and 35 of the Petition seeking custody of the children. The averments made in the said Petition on pages 28 and 35 are relevant for our consideration which read thus :
10. The first averment is on page 52 which reads thus :
"Even otherwise the petitioner has no objection if the respondent returns back to her matrimonial home and resides separately in the same house as she has been living previously for a sufficiently long long period."
11. The second averment is on page 59 which reads thus :
"The petitioner is also ready to reside in his home with the respondent separately as they have already resided for some time in the past or ready to allow the respondent to come home in his presence and to stay there separately for some days or if the Hon'ble Court directs the petitioner to allow the respondent to see the children on any particular date the Petition is ready for the same."
12. In the affidavit in lieu of evidence, the Respondent-wife in paragraph 3 thereof stated thus :
"3. I say that I deny all the allegations made against me by the Petitioner in his petition for custody. I say that the Petitioner has not resisted my claim for divorce which proves that he wants to continue with the said relationship. I say that the Petitioner has in his custody petition on pages 28 and 35 categorically stated that "he has no objection if I return to the matrimonial house and reside separately in the same house", i.e. on the first floor. I say that the matrimonial house is situate at Bungalow No. 23, Rajnigandha, Sardar Patel Nagar, MHADA, Versova, Andheri West, Mumbai and consists of a ground floor and a first floor. I say that during the pendency of the proceedings I observed that this pendency has caused a lot of trauma and agony to the children who have suffered greatly especially my son Akshat whose medical condition has deteriorated and therefore in the interest of the children I am ready to accept the offer made by the Petitioner whereby I will reside on the first floor of the matrimonial house and the Petitioner will reside on the ground floor and the children can be in the joint custody of both parents. I say that in the interest and welfare of the children I even withdrew my divorce petition and this Hon'ble Court has passed an order to that effect. However there are some factual errors in the order for which I will move an application for rectification."
(Emphasis added)
13. In paragraph 5 of the affidavit in lieu of examination of chief, the Respondent-wife stated thus :
"5. The offer states that I can stay on the first floor of the matrimonial house. I say that both me and the Petitioner can share the custody of the children and minimize the harassment caused to the children."
14. In paragraph 6 of the affidavit in lieu of examination of chief, she has further reiterated what she has stated earlier which reads thus :
"6.......Therefore in the best interest of the children I am ready to accept the proposal made by the Petitioner to stay on the first floor of the matrimonial home and the Petitioner can stay on the ground floor and the children's custody can be shared wherein I will also be able to supervise the children's day-to-day needs and they can also come over and stay with me when the Petitioner has to travel out-station for work which is about 15-20 days in the month as he is a Senior Pilot with Air India."
(Emphasis added)
15. Thus, when affidavit in lieu of examination in chief was filed by the Respondent - wife, Petition No. A2130 of 2010 appears to have been disposed of. There is a clear statement to that effect in paragraph 3 that she withdrew the Petition for divorce and an order was passed to that effect by the Family Court.
16. As far as submissions of the learned counsel appearing for the parties are concerned, it is not necessary to record the submissions in detail inasmuch as both the parties have agreed in principle for passing an order of remand. Our attention was invited to the order dated 23rd May, 2011 passed by the learned Judge of the Family Court in the Petition for divorce filed by the Respondent-wife by which the Appellant-husband was directed to pay maintenance of Rs. 25,000/- per month each to the children. The learned counsel appearing for the Appellant-husband on instructions states that the Appellant-husband is willing to pay maintenance of Rs. 35,000/- p.m. for the benefit of the male child and a sum of Rs. 25,000/- for the benefit of the female child. The learned counsel appearing for the Appellant states that a sum of Rs. 35,000/- p.m. and Rs. 25,000/- p.m. will be paid by the Appellant prospectively. He states that the Appellant has taken health insurance for the benefit of the son. He states that the policy of insurance along with the card issued by the service provider shall be immediately handed over by the Appellant to the Respondent. Accordingly, the said documents have been handed over by the Advocate for the Appellant to the Respondent in the Court. He states that without prejudice to his rights and contentions, he is willing to deposit a sum of Rs. 2.5 Lakhs with the Family Court towards medical expenses of the son. We accept the said statement.
17. We have carefully perused the entire record of the Family Court Appeal. According to us, gross error committed by the learned Judge is that a drastic order disturbing the custody of children has been passed only on the basis of alleged consent of the parties. The orders disturbing custody can have devastating effect on the children in many cases. The second error committed by the learned Judge is by relying upon the application dated 24th March, 2014 at Exhibit - 43 filed by the Respondent-wife not in the custody Petition but in the Petition for divorce filed by her in the year 2008. The said application is for seeking permission to withdraw the said Petition. Thirdly, the learned Judge of the Family Court has completely ignored what is stated in paragraph 5 of the said application dated 24th March, 2014. The Respondent-wife has referred to averments made at pages 28 and 35 of the custody Petition of the husband which we have quoted above. She has specifically stated that in the larger interests of the children and their future welfare, she was willing to accept the said offer of the Appellant and willing to stay separately in the matrimonial house at Andheri, Mumbai. As pointed out earlier, in the affidavit in lieu of evidence filed in the custody Petition on 30th April, 2014 the specific case made out by the wife was that she was willing to accept the offer of the husband to stay in the matrimonial house but to stay separately from the Appellant. In fact, her categorical statements which we have reproduced above show that she was willing to stay on the first floor of the matrimonial house so that both of them could share the custody of the children. In paragraph 6, the Respondent - wife has categorically stated that she was willing to accept the said offer made by the Appellant. She has reiterated that she can occupy the first floor of the matrimonial house and the Appellant can stay on the ground floor. She has stated that she will be able to supervise day-to-day needs of the children and the children can stay with her especially when the Appellant is away for 15 to 20 days in a month being a senior Pilot working in Air India. Thus, the learned Judge of the Family Court has committed an error by proceeding on the footing that the Respondent-wife had consented for handing over the custody of the children to the Appellant.
18. It will not be enough if we part with the judgment by recording aforesaid findings. We need to restate the well-settled position of law. In fact, it is not necessary to make a reference to large number of decisions of the Apex Court which are binding precedents. The basic principle is laid down in Section 17 of the said Act which reads thus :
"17. Matters to be considered by the Court in appointing guardian. (1) In appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference, the court may consider that preference.
[ * **]
(5) The court shall not appoint or declare any person to be a guardian against his will."
(Emphasis added)
19. Section 17 lays down the salutary principle that the welfare of the minor is the only paramount consideration for deciding the proceedings for custody and appointment of guardian. On plain reading of the provisions of Section 17, it is apparent that the Court is under an obligation to decide the issue of custody and guardianship not on the basis of legal rights but on the basis of the paramount consideration of the welfare of the minor children. We may refer only to the few decisions of the Apex Court. The first decision of the Apex Court is in the case of Rosy Jacob v. Jacob A. Chakramakkal, MANU/SC/0260/1973 : 1973 (1) SCC 840 : (AIR 1973 SC 2090, para 14). The Apex Court has considered the provisions of the said Act and in particular Sections 17, 18, 19 and 25 thereof. Paragraph 15 of the said decision reads thus:
"15. In our opinion. Section 25 of the Guardians and Wards Act contemplates not only actual physical custody but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education, this section demands reasonably liberal interpretation so as to effectuate that object. Hyper technicalities should not be allowed to deprive the guardian the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter's welfare. If the Court under the Divorce Act cannot make any order with respect to the custody of Ajit alias Andrew and Maya alias Mary and it is not open to the Court under the Guardians and Wards Act to appoint or declare guardian of the person of his children under Section 19 during his lifetime, if the Court does not consider him unfit, then, the only provision to which the father can have resort for his children's custody is Section 25. Without, therefore, laying down exhaustively the circumstances in which Section 25 can be invoked, in our opinion, on the facts and circumstances of this case the husband's application under Section 25 was competent with respect to the two elder children. The Court was entitled to consider all the disputed questions of fact or law properly raised before it relating to these two children. With respect to Mahesh alias Thomas, however, the Court under the Divorce Act is at present empowered to make suitable orders relating to his custody, maintenance and education. It is, therefore, somewhat difficult to impute to the legislature an intention to set up another parallel Court to deal with the question of the custody of a minor which is within the power of a competent Court under the Divorce Act. We are unable to accede to the respondent's suggestion that his application should be considered to have been preferred for appointing or declaring him as a guardian. But whether the respondent's prayer for custody of the minor children be considered under the Guardians and Wards Act or under the Indian Divorce Act, as observed by Maharajan, J., with which observation we entirely agree, "the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents". It was not disputed that under the Indian Divorce Act this is the controlling consideration. The Court's power under Section 25 of the Guardians and Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom - if ever - identical. The contention that if the husband is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading. It does not take full notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under Section 25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. There is a presumption that a minor's parents would do their very best to promote their children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children. From this point of view, in case of conflict or dispute between the mother and the father about the custody of their children, the approach has to be somewhat different from that adopted by the Letters Patent Bench of the High Court in this case. There is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children - which every normal parent has. These are the only two aspects pressed before us, apart from the stress laid by the husband on the allegations of immorality against the wife which, in our firm opinion, he was not at all justified in contending. Such allegations, in view of earlier decisions, had to be completely ignored in considering the question of custody of the children in the present case. The father's fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children - being normally the earning member and head of the family - but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels : nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us to have erred in reversing him on grounds which we are unable to appreciate."
(Emphasis added)
20. We may also make a reference to another decision of the Apex Court in the case of Ashish Ranjan v. Anupma Tandon and another MANU/SC/1013/2010 : (2010) 14 SCC 274 : (AIR 2011 SC (Supp) 362. Paragraphs 18 and 19 lay down the law on this aspect. In paragraph 19, in so many words, the Apex Court had held that statutory provisions dealing with the custody of child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In the case of Anjali Kapoor (Smt.) v. Rajiv Baijal MANU/SC/0613/2009 : (2009) 7 SCC 322 : (AIR 2009 SC 2821, paras 12 to 17), the Apex Court has quoted the earlier decision in the case of Rosy Jacob. Paragraphs 17 to 21 of the said decision are material which read thus :
"17. In Elizabeth Dinshaw v. Arvand M. Dinshaw (AIR 1981 SC 3) this Court has observed that whenever a question arises before court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child.
18. At this stage, it may be useful to refer to the decision of the Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar (MANU/TN/0350/1934 : AIR 1935 Mad 195) wherein the Court has observed, that, if a minor has for many years from a tender age lived with grandparents or near relatives and has been well cared for and during that time the minor's father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the bona fides of the petition by the father for their custody. In our view, the observations made by the Madras High Court cannot be taken exception to by us. In fact those observations are tailor made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision.
19. In McGrath (infants), Re it was observed that: (Chp. 148)
"... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well being. Nor can the ties of affection be disregarded."
20. In American Jurisprudence, 2nd Edn., Vol. 39, it is stated that:
"... An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment."
21. In Walker V. Walker & Harrison the New Zealand Court (cited by British Law Commission, Working Paper No. 96) stated that:
"Welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents."
(Emphasis supplied)".
21. Thus, it follows that the issue of custody of minor children cannot be decided by the Courts dealing with Petitions under the said Act or Petitions dealing with custody/visitation rights of children only on the basis of consensus or consent of the parties. Even under Rule 3 of Order XXIII of the Civil Procedure Code, 1908, a compromise can be recorded provided it is otherwise legal and is not against the public policy. In a case where contesting parties to a Petition under the said Act or under any other Enactment place compromise on record dealing with custody and visitation rights in relation to minors, the Court cannot the accept compromise mechanically. Before accepting the compromise and permitting parties to act upon the compromise, the Court has to apply its mind to the well settled law. What is paramount is what is conducive to the welfare of the children. Therefore, it is the duty of the Court to consider whether the compromise is for the welfare of the children. As stated earlier, the consent of the parties and even the personal law dealing with the issue of custody of children cannot and must not supersede paramount considerations laid down under Section 17 of the said Act. The Court has to be very cautious especially when parties by consent agree to disturb the custody of the children.
22. In a given case, the husband and the wife may file consent terms dealing with several issues such as their matrimonial status, maintenance, property as well as the custody of minor children. We are not even suggesting that such a compromise cannot be filed on record and cannot be acted upon. As far as the compromise dealing with the custody of the children is concerned, by the very nature of the proceedings and considering the mandate of law, before accepting the settlement as regards the custody of the children as well as visitation rights and especially when the settlement provides for disturbing custody, it is the duty and obligation of the Courts to test the compromise in terms of the requirements of Section 17 of the said Act and the law laid down by the Apex Court in that behalf. In a given case, the Court may record settlement on all aspects except the part of the settlement as regards the custody if the Court finds that the compromise as agreed as regards the custody or access to the minors is not in their interests or will not work for their benefit. In such a case where the Court is satisfied that the agreed arrangement will not serve the welfare of the children, while passing an order in terms of the consent terms, the learned Judge can either keep the issue of custody open to be decided in appropriate proceeding or if the issue of custody arises in the proceedings in which the consent terms are filed, he may proceed to decide the issue on merits.
23. In the present case, there is a non-application of mind by the learned Judge as he has not considered the aspect of the welfare of the children. Therefore, in our considered view, the impugned order is completely illegal even assuming that there was a consent granted by the wife.
24. The affidavit-in-lieu of examination-in-chief has been already filed by both the parties. Even going by the affidavit-in-lieu of examination-in-chief filed by the wife and statements made in the application dated 24th March, 2014 at Exhibit-43 in the Petition for divorce, the so called consent of the wife was not at all unconditional. In fact, the wife accepted the suggestion of the husband to reside in the matrimonial home for the sake of children so that the parties can have joint custody of the children.
25. There is one more aspect which needs to be considered. On 30th April, 2014, the Appellant husband who was the Petitioner in the Custody Petition, filed affidavit-in-lieu of examination-in-chief. The said affidavit has been marked as Exhibit-50. On the very day, the wife's affidavit-in-lieu of examination-in-chief was taken on record. Unless the cross-examination of the husband and the evidence of the other witnesses, if any, examined by him was recorded, there was no occasion for the learned Judge to permit the wife to file affidavit-in-lieu of examination-in-chief. In a given case, after considering the evidence of the Petitioner, the Respondent may decide to not to lead evidence as well.
26. Now, the question is what should be the interim arrangement between the parties till the disposal of the Petition.
27. Our attention is invited to the order dated 23rd May, 2011 passed in the Petition No. A2130 of 2010 by the learned Judge of the Family Court on the Application made by the wife. The operative part of the said order reads thus:
"1. The application is partly allowed.
2. The respondent shall pay Rs. 25,000/- per month each to son Akshat and daughter Aastha (Total Rs. 50,000/- p.m.) towards their maintenance from the date of the application i.e. 9.9.2010 until the decision of main petition.
3. The respondent shall deposit the amount of maintenance in the Bank account of the children (i.e. Bank of Baroda Branch at Kalina, Mumbai) every month regularly and shall handover the ATM card to the petitioner for withdrawal of the maintenance amount. In case, the ATM card is not provided, the amount of maintenance shall be deposited directly in the account of petitioner in her bank account where she is having her account.
4. The respondent shall also bear the actual expenses incurred towards the medical treatment including therapies on son Akshat. He shall directly deposit/pay the amount towards the expenses with the concerned authority.
5. The claim of maintenance for petitioner stands rejected.
6. The respondent shall also pay the amount of Rs. 5000/- to the petitioner towards the expenses of litigation."
28. It is pointed out that the Execution Application filed by the wife for execution of the said order is pending before the Family Court. Till the disposal of the said Petition for divorce on 24th March, 2014, the aforesaid order was binding on the Appellant husband. The learned counsel appearing for the Appellant on instructions stated that as far as the compliance with the said order is concerned, ah execution application is pending, and therefore, no direction can be issued as regards the amount payable as per the said order. However, on instructions, he stated that prospectively, the Appellant will pay maintenance amount of Rs. 35,000/- per month for the benefit of the son and Rs. 25,000/- for the benefit of the daughter till disposal of the Petition for custody. As recorded earlier, the Appellant has offered to bear the expenditure on the medical treatment of his son Akshat and he has also handed over the policy of medical insurance and the card provided by the service provider to the Advocate for the Respondent in the open Court.
29. There cannot be any dispute that till 24th March, 2014, the Appellant was liable to pay maintenance in terms of the said order dated 23rd May, 2011 and, therefore, the issue whether the Appellant was liable to pay the said amount cannot be left to the Executing Court. As far as the quantum of the expenses payable in terms of the Clause 4 of the order dated 23rd May, 2011 are concerned, that matter can be left to the Executing Court.
30. The learned counsel appearing for the Appellant submitted that some arrangement will have to be made for grant of visitation rights to the Appellant husband to meet the children. Needless to add that the arrangement which was continued between the parties pending the Petition for custody will have to be continued. In any event, the Appellant can always apply to the Family Court for seeking necessary directions in that behalf. Therefore, we are not passing any specific order on this aspect.
31. As the suggestion given by the Appellant in the Petition for custody has been accepted by the Respondent wife in her affidavit-in-lieu of examination-in-chief, we are of the view that it will be in the interests of both the children that both the husband and the wife act upon the said arrangement suggested by the Appellant himself in his Petition for Custody. We have already noted that the Respondent wife has stated that she can stay on the first floor of the matrimonial home and the Appellant husband can stay on the ground floor. The wife has shown willingness to have a joint custody of the children.
32. It cannot be disputed that the son Akshat requires continuous medical treatment and attention. It is true that medical insurance has been taken by the Appellant. However, the entire expenditure on the medical treatment may not be covered by the of policy or in a given case, the Insurer may not pay the requisite amount. Therefore, we propose to direct the Appellant to deposit a reasonable amount towards the medical treatment of the son with the Family Court. In the event, certain amount is required for meeting the medical expenditure of the son, the wife can always apply to the Family Court for seeking permission to withdraw certain amount out of the amount deposited by the Appellant husband. If this course is adopted, the wife will not be required to take separate proceedings for recovery of the medical expenses. We are passing this order especially when there is no dispute between the parties on the present condition of the son.
33. Considering the manner in which the legal proceedings have been filed by the parties and the nature of contest, the Custody Petition may not be decided in the immediate future as we are informed that the Custody Petition has been ordered to be heard along with the Petition for divorce filed by the Appellant in the year 2014. We, therefore, propose to direct the Appellant husband to deposit a sum of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand) with the Family Court for meeting the medical expenses of the son. If the hearing of the Petition is delayed, the Family Court can always pass appropriate order for directing the deposit of additional amount by the Appellant.
34. Before we part with the judgment, we must note a submission made by the learned counsel appearing for the Appellant-husband. It is pointed out that the Respondent wife who was holding the post of Assistant Commissioner of Income Tax has been suspended and she is facing a prosecution under the Prevention of Corruption Act, 1988. The argument was that there is every possibility that the wife will be put in jail. We must note here that as of today, there is no material on record to show that the children are not being properly looked after by the wife. We have already quoted the law on this aspect. The orders of custody and visitation rights are never final in the sense that if there is any change in circumstances, the orders can be always modified. Therefore, in case of any drastic change in the circumstances, the husband can always apply to the Family Court for necessary interim orders for protecting the interests of the children.
35. Hence, we pass the following order:
ORDER:
(a) The impugned order dated 15th July, 2014 is hereby quashed and set aside and the Petition No. D54 of 2010 is hereby restored to the file of the learned Judge of the Family Court at Mumbai;
(b) The said Petition No. D54 of 2010 shall be heard along with the Petition No. A1143 of 2014 filed by the Appellant husband seeking a decree of divorce;
(c) As both the Petitions are ordered to be heard together and as the present Appellant is the Petitioner in both the Petitions, common evidence will have to be adduced. Therefore, we clarify that both the Appellant and the Respondent will be entitled to adduce additional evidence in addition to the affidavit-in-lieu of the examination-in-chief already filed on record in Petition No. D54 of 2010;
(d) We direct the Appellant husband to file an affidavit before the Family Court on the date fixed for appearance of the parties under this order setting out the particulars of compliance made with the directions contained in Clause 2 of the judgment dated 23rd May, 2011 passed below Application Exhibit-6 on the Interim Application No. 219 of 2010 in Petition No. A2130 of 2010. The Appellant will annexe the necessary documents;
(e) We clarify that the Appellant is bound to comply with the directions contained in the aforesaid order dated 23rd May, 2011 till 23rd March, 2014. If the Appellant is in arrears of the said amount in terms of the Clause 2 of the said order dated 23rd May, 2011, the Appellant shall pay the said amount within a period of two months from today;
(f) Needless to add that if an affidavit is filed by the Appellant husband claiming that he is not in arrears, after permitting the Respondent wife to file a reply to the affidavit, the learned Judge of the Family Court at Mumbai will be entitled to pass an order and direct deposit of the amount of arrears, if any, within a specified time;
(g) As far as the controversy regarding nonpayment of the amount in terms of Clause 4 of the order dated 23rd May, 2011 is concerned, we make it clear that the said issue will be resolved in the pending execution proceedings;
(h) We direct the Advocate for the Respondent wife to furnish necessary particulars of Bank Account of the Respondent-wife along with a cancelled cheque of her Bank Account to the Advocate for the Appellant within a period of two weeks from today;
(i) We direct the Appellant husband to pay maintenance at the rate of Rs. 35,000/- per month for the benefit of the son Akshat and Rs. 25,000/- per month for the benefit of the daughter Aastha from December 2016 onwards till disposal of the Petition for Custody;
(j) The amount payable for the month of December, 2016 shall be paid directly by the Appellant husband by transferring the same to the Bank Account of the Respondent wife on or before 24th December, 2016. From the month of January 2017 onwards, the amount shall be paid on or before the 10th day of every calendar month. The amount shall be paid by transfer of the amount to the Bank Account of the Respondent wife;
(k) We record that a true copy of the policy of medical insurance taken for the benefit of the son Akshat and the card provided by the service provider have been handed over in the custody of the wife;
(l) We make it clear that in addition to the maintenance amount, the Appellant husband shall bear the actual expenses incurred on the medical treatment of the son Akshat as provided in the order dated 23rd May, 2011;
(m) The amounts payable under the policy of medical insurance for the medical treatment of the son shall be recovered by the Respondent wife. If certain amount is not paid by the Insurer, it will be the responsibility of the Appellant husband to pay the said amount to the Respondent wife on the basis of the actual expenses incurred on the medical treatment of the son;
(n) For meeting such expenditure, we direct the Appellant husband to deposit with the Family Court a sum of Rs. 7,50,000/- (Rupees Seven Lakh Fifty Thousand). A sum of Rs. 5,00,000/- (Rupees Five Lakhs) shall be deposited within a period of two months from today and the balance sum of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand) shall be deposited within a period of four months from today;
(o) As soon as the amounts are deposited, the same shall be invested in a fixed deposit with any nationalized bank. Fixed deposits shall be separately made in the sum of Rs. 50,000/- each;
(p) It will be open for the Respondent wife to apply to the Family Court for withdrawal of the amount for meeting the medical expenditure of the son Akshat, in case the wife is not able to recover the said amount from the Insurer;
(q) Needless to add that after giving an opportunity of being heard to the Respondent wife, if a case is made out by the wife for withdrawal of certain amount out of the amount deposited by the Appellant, the Family Court shall permit the wife withdraw necessary amount by ordering the premature encashment of the Fixed deposits;
(r) Deposit of the aforesaid amount of Rs. 7,50,000/- will be subject to further orders which may be passed in the Petition for custody;
(s) In the event, the said amount is permitted to be withdrawn in its entirety, the Family Court will be at liberty to pass an order directing deposit of additional amount by the Appellant husband;
(t) While passing final order on the Custody Petition, necessary directions shall be issued by the Family Court as regards disbursement/withdrawal of the balance amount, if any, out of the deposit made by the Appellant husband;
(u) Necessary orders regarding disbursement of the interest accrued on the fixed deposits, if any, shall be also passed at that time by the learned Judge of the Family Court, Mumbai;
(v) The arrangement which was prevailing between the parties on the date of passing the impugned order as regards the visitation rights to the Appellant husband to meet the children will continue to operate till the final disposal of the Custody Petition;
(w) Needless to add that it will be always open for the Appellant to make an appropriate Application before the Family Court for issuing further interim directions in the matter of access and visitation rights. If such Application, if made, shall be decided by the Family Court on its own merits;
(x) We make it clear that considering the welfare of the children, both the parties shall refrain themselves from addressing any communication in any form to the employers of the rival party;
(y) We must record here that it is in the larger interests of the children that the Appellant husband gets a reasonable opportunity to effectively meet the children. It is the responsibility of the Respondent wife to ensure that both the children are encouraged to meet their father;
(z) It will be always open for the parties to apply to the Family Court for seeking necessary priority to the hearing of the pending matters.
(aa) The restored Petition No. D54 of 2010 shall be placed before the learned Judge of the Family Court, Mumbai, before whom the Petition No. A1143 of 2014 is pending on 7th February, 2017 when the said Petition for divorce is fixed;
(bb) In the event, the parties desire to pray for any interim directions, they are free to move the Family Court before after the judgment is uploaded;
(cc) The Appeal is partly allowed on above terms;
(dd) We make it clear that we have made no adjudication on merits of the Custody Petition as well as the Petition for divorce and all contentions on merits in that behalf are kept open;
(ee) Considering the orders passed as regards the deposits to be made by the Appellant husband, we are not passing any order as to costs;
(ff) We direct the Registrar (Judicial-I) to circulate a copy of this judgment to the learned Judges of the Family Courts in the State.
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