Nidhi Gupta v. Vishal Gupta
$~2 * IN THE HIGH COURT OF DELHI AT NEW DELHI + MAT.APP. (F.C.) 79/2016, CM APPL.21598/2016 NIDHI GUPTA ..... Appellant Through: Mr. Parveen Kumar, Advocate along with appellant in person.
versus VISHAL GUPTA ..... Respondent Through: Mr. Sahil Munjal, Advocate along with respondent in person.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA
O R D E R
% 22.07.2016 The appeal is directed against an order disposing of an application seeking custody of the child during summer vacation. The Family Court noticed that even though the application is styled as one seeking interim custody, it practically sought relief beyond that and sought final relief under Section 12 of The Guardians and Wards Act, 1890. According to the arrangements existing between the parties - arrived at about two years ago, the mother and the child were meeting each other every Saturday for two hours in the Rohini Court Complex. The appellant had urged that since the school was closed for about six weeks, she should be given custody of the child. This Court noticed that since the meetings directed by the Trial
Court in the Rohini Court Complex were unsuccessful, after counselling, the child started accepting and meeting her mother. The Court recorded its reasons for denying the applicant's application in the following terms: - "5.
XXX XXX XXX It was with the intervention of this court that the meeting started taking place initially in the Counselling chamber and gradually in the Children Room.
6. In the observation and the opinion of this court, handing over the custody even temporarily to the mother may not be for the welfare and in the interest of child. In the opinion of the court, bond between the mother and baby Himani is still not strong enough for the child to stay over night or for long duration with the mother. The application is, therefore, dismissed. However, considering the argument that courts will be closed during summer vacations and visitation rights may not take place. It is clarified that even during the summer vacations, the Children room will be open and visitation shall continue as previously ordered."
A reading of the impugned order would show that it is not clear as to whether the learned Judge - in paragraph 5 referred to the counselling which took place in his chamber on the date of hearing or referred to the previous counselling. Nevertheless the tenor of the order is such that the Court felt that it was not in the interest or welfare of the child that she meets the mother and stay overnight. This Court is of the opinion that to arrive at such a drastic conclusion, the Family Court ought to have considered the views of an expert and not taken upon itself the task of assessing and concluding on a prima facie basis the propensity of the child or her preference. We are mindful of the fact that the child - a young girl
has been with her father for over two years and it may not be possible in the course of one meeting to conclude that her preferences are marked or well found.
In the circumstances, the Family Court is directed to refer the child to an Expert for 3 or 4 appropriate counselling sessions and after considering the report of such Counsellor satisfy himself as to the most appropriate order to be made in the best interest of the child. The entire exercise shall be carried out within two months. It is made clear that this order will not be confined to summer vacation but is on a general assessment of the larger welfare of the child. The appeal is disposed of in the above terms. S. RAVINDRA BHAT, J DEEPA SHARMA, J JULY 22, 2016 /vikas/