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Full order of THE HONOURABLE MR.JUSTICE V.PARTHIBAN Application Nos.2010 and 2011 of 2021. —This Court finds that the children are in need of counselling, in order to overcome the plausible emotional stress impacting on their tender age, owing to the fact that instead of collaboration, parents are acrimoniously involved in competition towards establishing exclusive rights over the custody of the children, even in the interregnum

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

Dated: 17.09.2021

 

Coram:

 

THE HONOURABLE MR.JUSTICE V.PARTHIBAN

 

Application Nos.2010 and 2011 of 2021

in

O.P.No.443 of 2021

 

 

V.Anusha                                                          .. Applicant/petitioner in O.P.

Vs.

B.Krishnan                                                   .. Respondent/Respondent in O.P

 

Judge’s Summons under Order XIV Rule 8 of the Original Side Rules of this Court read with Section 12 of the Guardians and Wards Act, 1890 and  A.No.2010 of 2021 in O.P.No.443 of 2021 filed praying to grant visitation rights to the petitioner to visit the minor children on Saturday and Sunday, pending disposal of the above O.P.

Judge’s Summons under Order XIV Rule 8 of the Original Side Rules of this Court read with Section 12 of the Guardians and Wards Act, 1890 and A.No.2011 of 2021 in O.P.No.443 of 2021 filed praying to pass interim order directing interim custody of the minor children, viz., 9 years old Ajitesh and 6 years old Akilesh to the petitioner, pending disposal of the above O.P.

 

 

For applicant : Mr.T.Mohan for M/s.K.Moorthy

For respondent : Mr.S.Jayakumar

 

ORDER

 

Application No.2010 of 2021 in O.P.No.443 of 2021 is filed to grant visitation rights to the petitioner to visit the minor children on Saturday and Sunday, pending disposal of O.P.No.443 of 2021.

 

  1. Application No.2011 of 2021 in O.P.No.443 of 2021 is filed to pass an interim order directing interim custody of the minor children, viz., 9 years old Ajitesh and 6 years old Akilesh to the applicant, pending disposal of O.P.No.443 of 2021.

 

  1. When Application No.2010 of 2021 was taken up for hearing on 26.08.2021, after hearing the parties and also on interaction this Court had with the children, mother and the father separately, has directed the respondent/father to hand over the custody of the minor children to the applicant/mother every week-end at 5 p.m. on Fridays from 27.08.2021 and the applicant/mother was directed to leave the children back at the respondent/father’s place at 7 a.m. on the following Mondays.  This Court has also made it clear that it is open for the father to visit the children at the applicant’s place if there is any requirement or if he chooses so. It was further clarified that the applicant/mother was also at liberty to visit the children at the respondent’s residence any time during the working days, if she so decides.

 

  1. The said arrangement was directed to be reviewed after the outcome of the week-ends custody granted to the applicant-mother in the next date of hearing on 14.09.2021.

 

  1. On 14.09.2021, Mr.T.Mohan, learned counsel for the applicant/mother submitted that the respondent/father having exclusive custody over the children as on date, he is exercising undue influence, and enticing the children of visit to Temples or Shopping Malls in the week-ends, with a devious view to effectively frustrate and render week-end  visitation right granted to the applicant/mother by order of this Court, dated 26.08.2021, as unworkable.

 

  1. The learned counsel for the applicant/mother also submitted that because of the separation of the mother away from her children and due recalcitrant respondent/father, the children may develop adverse behavioural pattern towards their mother. According to him, only on some week-end days, the younger son had come to the place of the applicant/mother and not the older minor son.

 

  1. At this, this Court on 14.09.2021, has directed the learned counsel to file a detailed Memo stating as to what transpired after the direction was issued by this Court on 26.08.2021 and adjourned the case to 17.09.2021.

 

  1. When the brief submissions were made on the above lines by the learned counsel for the applicant/mother, on 14.09.2021, there was no representation on behalf of the respondent/father.

 

  1. When the matter is taken up for hearing today, on behalf of the applicant/mother, Mr.T.Mohan, learned counsel once again appeared and by then, the Memo dated 16.09.2021 had been filed. In the memo, the following directions are being sought before considering the application seeking interim custody of the minor children and visitation rights:

(i) to direct the respondent to co-operate in letter and spirit to comply with the order of the Court in the interest of the children;

(ii) to extend the custody of the children with the applicant from Thursday evening 5 p.m to Monday morning 7 a.m.;

(iii) to direct the respondent to hand over the custody of the children to the applicant over the Dasara Holidays from 09.10.2021 to 18.10.2021;

(iv) to permit the applicant to take the children for counselling to a child psychologist as referred in paragraph 4 of the Memo, in the interest of their welfare and well-being;

(v) to permit the applicant to approach the School authorities to interact with them to get details of educational assessment of children for their well-being;

(vi) to pass appropriate directions to the school, namely Sri Chaitanya Techno School at House No.346, Kasi Estate, Pillayar Koil Street, Jafferkhanpet, Chennai, Tamil Nadu-600 083, to access and interact with the applicant to monitor the children’s education.

 

  1. According to the learned counsel, the above directions became necessary because of the incompliant attitude exhibited by the respondent-father towards sending the minor children to the residence of the applicant/mother towards facilitating the visitation rights granted by this Court.

 

  1. The learned counsel, in fact, has strongly pleaded that the attitude of the respondent/father over the minor children and keeping the mother out of their sight, completely, denying her parenting opportunity, would have lopsided adverse impact on the children’s attitude towards their own mother. The learned counsel also cited a decision of a learned Judge of this Court (as he then was), reported in 2011 (2) CTC 736 (S.Anand @ Akash Vs. Vanitha Vijaya Kumar), wherein this Court has dealt with the psychological impact on the minor children when they come under the continued influence of one of the parents and how that could influence their behavioural pattern and character towards the other parent.

 

  1. The learned counsel further submitted that in such a scenario, the Courts have taken a broader view not to be guided completely with the wish of the minor children alone while deciding the visitation rights or on the immediate outcome of the visitation rights already granted. In paragraph 4 of the said Memo, dated 16.09.2021, the names of two psychologists have been suggested whose valuable service could be engaged for counselling  both the children with the co-operation of both the parents in the over-all interest of the children. He would therefore implore this Court to pass orders in terms of the said Memo.

 

  1. On behalf of the respondent/father, a counsel appeared and opposed grant of any relief in terms of the Memo filed on behalf of the applicant/mother.

 

  1. When this Court repeatedly confronted the learned counsel for the respondent as to the basis for his objection to the relief being granted in terms of the Memo, the learned counsel has not responded to this Court with any convincing or cohesive answer.

 

  1. On the other hand, he kept arguing tenaciously unmindful of the simple question posed by this Court to him to disclose any material objection against consideration of the Memo in part or the full, filed on behalf of the applicant/mother. In fact, the learned counsel was not even apologetic when he was told that on earlier occasion, when brief submissions were made by the learned counsel for the applicant/mother on 14.09.2021, he was not present, and taking note of his absence, the matter was specifically adjourned to today with a direction to the applicant’s counsel to file a Memo and also to inform him of the  date of adjournment.

 

  1. This Court is unable to appreciate the conduct of the learned counsel for the respondent/father for the simple reason that in matters like this, show of utmost sensitivity is expected of the counsel representing the parties. It is needless to state that the ultimate endeavour of this Court is to ensure the well-being and the robust growth of the children unaffected by the estranged and strained relationship of the parents. The minimum responsibility of the Advocates representing the parties in such matters is to extend dispassionate valuable assistance to the Court with benign understanding towards conflicting emotive clash between the parents, one fervently appealing to the custody and the other obstinately denying the custody. Unless the counsel, who appear in such matters render meaningful, workable and equitable assistance to the Court, the Courts would not be able to base its decision/directions on the acceptable premise, essentially to avoid bringing in chaos in the lives of the minor children. It is unfortunate that this Court finds abject surrender of situational sensitivity expected of the officer of the Court in favour of professional oneupmanship demonstrating crass callousness and apathy towards the cause. Ultimately, the learned counsel did not render any assistance to the Court, but kept opposing the Memo filed by the applicant/mother by raising the decibel level of his submissions, as if adopting such method, he could improve the case of his client.

 

  1. In any event, leaving aside the conduct of the learned counsel for the respondent/father, this Court has to consider the Memo with dispassion   in one sense and in other sense with involved empathy towards finding a workable arrangement till final decision is taken in the matter.

 

  1. In the light of the above factual scenario, as the grant of visitation rights during the week-ends did not fructify in its letter and spirit, allegedly due to the furtive attempts by the respondent/father working against the implementation of the visitation rights as ordered by this Court on 26.08.2021, this Court is constrained to look up to the legal precedent as to how a situation of this nature is to be dealt with. In the quest, this Court finds that the decision cited by the counsel for applicant encapsulates similar situation offering plausible legal solution. The erudite observations of the Court in the said decision reported in 2011 (2) CTC 736 (S.Anand @ Akash Vs. Vanitha Vijaya Kumar), are extremely relevant for the consideration of the present Memo filed herein on behalf of the applicant/mother. In this connection, paragraphs 40 to 44, 57 to 59, 63 to 65 and 67 of the decision of this  Court, are useful to be extracted hereunder:

“40. Sub-section (3) of Section 17 of the Guardians and Wards Act, 1890 prescribes that if the minor is old enough to form an intelligent preference, the Court may consider that preference. But, the weight to be accorded to the preference of the minor, depends upon various other factors. While the intelligent preference of the minor could be one of the several factors, it could never be the controlling factor.

  1. Article 12 of the United Nations Convention on the Rights of the Child reads as follows:

“1. States Parties shall assure to the child, who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child; and

  1. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of the National Law.”

 

  1. What is statutorily provided under Section 17(3) is what is reflected in Article 12 of the Convention on the Rights of the Child. Therefore, it has become customary for the Courts to speak to the child for a few minutes, especially while deciding Interlocutory Applications. But, when the Court is confronted with a stubborn child, the execution of a decision to hand over the child to one of the parents, against the wishes of the child, becomes a herculean task.
  2. However, if a Court pleads helplessness on the ground that a child of 6 years or 7 years, refuses to go with one of the parents, it would, in my opinion, amount to an abdication of the responsibility that is invested with the Court. If a Court does nothing more, than merely recording the unwillingness of the child to go with one of the parents, the Court would be seen as surrendering its responsibility to the will of a small child. In such an event, the preference that the child makes, would replace the judgment that a Court is obliged to render.
  3. Therefore, unable to go solely on the basis of the unwillingness of the child and also with a view to find out the truth, I acceded to the request of the First Respondent-mother and passed an order on 2.2.2011, directing the Applicant to take the child to Dr. V. Jayanthini, Head of the Department of Child Guidance Clinic attached to the Government Childrens Hospital, Chennai, for an assessment. The purpose of the assessment was to find out (i) if the child has any deep rooted problems in going with the Respondents or (ii) if the child was acting under external influences.
  4. In Diane Q. Brownv. George C. Brown, 362 SC 85 (2004) : 606 S.E. 2d 785, the Court of Appeals of South Carolina held as follows:

“In determining the best interests of the child, the Court must consider the child’s reasonable preference for custody. The Court shall place weight upon the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference”. S.C. Code Ann. $ 20-7-1515 (Supp. 2003); see also Moorhead v. Scott, 259 S.C. 580, 585, 193 S.E. 2d 510, 513 (1972) (holding the wishes of a child of any age may be considered under all the circumstances, but the weight given to those wishes must be dominated by what is best for the welfare of the children). The significance to be attached to the wishes of children in a custody dispute depends upon the age of the children and the attendant circumstances. See Smith v. Smith, 261 S.C. 81, 85 : 198 S.E. 2d 271, 274 (1973). The child’s preference will be given little weight where the wishes of the child are influenced by the permissive attitude of the preferred parent. Id. at 86, 198 S.E. 2d at 274”.

 

  1. The above decision was quoted with approval in William John Paynev. Shery Payne, 382 SC 62 (2009) 674 S.E. 2d. 515, wherein Hearn, C.J., pointed out that “while child’s reasonable preference is a factor, it is not controlling”. These decisions were based upon one of the earliest decisions of the Supreme Court of South Carolina in Moorehead v. Scott, 259 SC 580 193 S.E. 2d. 510, wherein it was pointed out that “the wishes of a child of any age may be considered under all circumstances, but the weight given to those wishes must be dominated by what is best for the welfare of the children”.
  2. The decision in Moorehead, was followed by the Supreme Court of South Carolina in Robert B. Smithv. Clara Susan Smith, 261 SC 81 (1973) : 198 S.E. 2d. 271. While reversing the decision of the lower Court to place the child in the custody of the father, the Court took note of the fact that the wishes of the child may have been influenced by a permissive attitude on the part of the father. The following passage from the said decision is of relevance:

“The child in this case had been in the custody of the father for some time prior to the hearing in the lower Court. The record strongly indicates that the wishes of the child may have been influenced by a permissive attitude on the part of the father. The report of the Probation Officer of the Family Court, although recommending that custody be given to the father, summarised her view as to the child’s wishes as follows:

“Robbie expressed a desire to stay with his father, but to be allowed visitation with his mother. He pointed out few negatives as far as living with his mother and his motives for wanting to stay with his father are questionable as pointed out by Linda Smith (the father’s second wife). She feels Robbie is given more in all ways from his father now because of the tension of not knowing if Robbie will get to stay with him. Robbie knows this and is able to manipulate both his father and his mother with the circumstances.”

 

Therefore, as pointed out in the last portion of the above extract, if the Court finds that the child is able to manipulate the elders (including the parents and the Court) and that the preference made by the child is on account of a permissive atmosphere created by the retaining parent, it is the duty of the Court to ignore such preference.

  1. A reading of the portions extracted above would show that the objections of a child, whether (i) it be for his/her return to the country from where he/she was removed, or (ii) it be for his/her return to the parent holding custody before its removal, has to be tested on the touchtone of the following principles:
  2. the age and degree of maturity of the child;
  3. Whether the objection of the child has been shaped or coloured by undue influence or pressure directly or indirectly exerted by the abducting parent to such an extent that it requires such views to be disregarded or discounted;

iii. Whether the objections of the child result solely from a desire to remain with the abducting parent, then little or no weight should be attached to the child’s objections.

  1. In paragraph 58 of his opinion, Sir Mark Potter quoted the observations of Baroness Hale of Richmond in the House of Lords, In re M. (Children) (Abduction: Rights of Child), 2008 (1) AC 1288. The observations of Baroness Hale, quoted in paragraph 58 of the above decision, read as follows:

“These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, Courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that those views are always determinative or presumptively so. Once the discretion comes into play, the Court may have to consider the nature and strength of the child’s objections, the extent to which they are ‘authentically her own’ or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.”

 

  1. After quoting the above observations with approval, Sir Mark Potter went on to consider in paragraphs 66 and 67, the broader welfare considerations, inherent in the objections voiced by the children. It is on account of these other welfare considerations, which formed the basis for the views of the children that the Court ultimately dismissed the Application of the father in that case. Therefore, it is clear that the weight to be attached to the objections of the child not only depend upon his age and maturity, but also depend upon broader welfare considerations.
  2. Taking into account all the above, I am of the view that the following interim arrangement would help the child get back to its original position:

(i) After school hours on every Friday, the Applicant shall take the child and hand it over to the First Respondent at her residence. On the following Monday, the First Respondent shall take the child and leave him at school in the morning. The Applicant shall take the child to his house after school hours on Monday evening. In other words, the Applicant shall take care of the child from Monday to Friday evening and the First Respondent shall take care of the child from Friday evening to Monday morning.

(ii) If the child is very adamant and refuses to go to the house of the Respondents, the Applicant shall take the child to Dr.M.Papakumari, Child Psychologist, who has assured a smooth transition and about which the final report of Dr.V.Jayanthini also contains a mention.

(iii) It is the responsibility of the Applicant to ensure that the child co-operates. If the above arrangement does not work out, I may be left with no alternative except to order the child to be admitted to a residential school, in the next academic year, so that the child is taken out of a totally permissive environment.”

 

 

 

  1. From the above judgment of the learned Judge (as he then was), it could be seen that the duty and responsibility of this Court does not end by a brief interaction with the children and the parents concerned and a decision taken on that basis. The responsibility of this Court transcends beyond customary and summary interaction with the children and to ensure that the paramount interest of the minor children is not compromised in the cross-firing. In the process, this Court has to weigh several aspects in the realm of the psychological development of the children, their up-bringing, exercise of undue influence by one parent having the benefit of the custody possible alienation from the other parent due to forced separation etc. In fact, the learned Judge in that decision has quintessentially held that if the Courts were to record the unwillingness of the child to go with one of the parents, it would amount to surrendering its responsibility to the will of a small child. In such an event, the preference that the child makes, would replace the judgment that a Court is obliged to render.

 

  1. From the above decision, it could be seen that the Court cannot discharge its duty perfunctorily with a jaded and fossilized judicial disposition. It must discharge its onerous responsibility and caring duty with lot more circumspection and sensitivity. The obligation of this Court in dealing with custody matters, is far more sensitive and demanding than the other matters which come up for consideration before this Court.

 

  1. In all custody matters, any decision of the Courts will have a far-reaching emotional and psychological implications affecting both the parents as well as the children. When the Court is called upon to settle custody issues, the judicial intervention in such matters is to be tempered with profound understanding and sagacity. In a complex family terrain confronting unfathomable divergent minds of the two adult parents holding respective emotional positions towards rearing  their children, this Court as far as possible has to draw a delicate and finer line towards achieving the cause, as in the saying of the American politician and educationist Jane Dee Hall, “At the end of the day, the most overwhelming key to a child’s success is the positive involvement of parents.”

 

  1. This Court has to discharge its obligation to ensure that the minor children are not to become emotional victims, caught between the two differing adult minds failing to come to terms towards rapproachment for the sake of the children’s welfare even for a brief transitional period before the custody O.P. is decided.

 

  1. Now, reverting to the subject on hand, the reasons and observations of the learned Judge (as he then was) in the above reported decision, are to be squarely applied to the factual matrix of this case. Even during the brief interaction of this Court with the parents and children, there was nothing amiss that was spoken by the children against their mother, particularly, the older boy. However, this Court did find that the older boy appeared to have come under the influence of his father quite naturally, as he has been staying with the father uninterruptedly for a considerable length of time, separated from his mother, the applicant herein. Despite the above fact, he also did not have anything negative to say about being with the mother for some time during week-ends. As far as the younger boy is concerned, he has nothing against his mother at all and he is very much willing to spend his week-ends with his mother.

 

  1. In any event, in matters like this, when separation gives rise to detachment and alienation, consequential hiatus needs to be bridged for the welfare of the children and that could happen only through systematic and methodical counselling by the experts. On behalf of the applicant, two names of eminent psychologists are suggested with address in the Memo.  This Court finds that the children are in need of counselling, in order to overcome the plausible emotional stress impacting on their tender age, owing to the fact that instead of collaboration, parents are acrimoniously involved in competition towards establishing exclusive rights over the custody of the children, even in the interregnum.

 

  1. Moreover, as an educated mother, the applicant herein indisputably has every right to ensure that her children do not lag behind in their educational pursuit in their schooling, due to the parents estrangement. Therefore, this Court does not find anything wrong with the permission being sought by the applicant to approach the School authorities and interact with them in order to ascertain the educational requirement and also to assess the performance of the children. Likewise, subjecting the children to counselling is also in the interest, welfare and well-being of the children and after all, the paramount duty of this Court is to ensure that the children need to be connected emotionally with both the parents for their all-round development and growth.  A prayer has also been sought to extend the custody of the children with the applicant/mother from Thursday evenings till Monday mornings by modifying the earlier direction of this Court, dated 26.08.2021, wherein this Court has granted visitation rights from every Friday evening to Monday morning. This Court finds that by seeking extra day’s custody of the children is not going to be in conflict with the interest and welfare of the children, but, on the other hand, it will also help the children to develop a bond towards their mother also, if they spend longer period of time with her.

 

  1. In the light of the above discussion, the following directions are issued :

(a) The custody of the children with the applicant is granted from Thursday evening 5 p.m. to  Monday morning 7 a.m. every week.

(b) The applicant/mother is permitted to take the children for counselling to the child psychologist referred to in paragraph 4 of the Memo, dated 16.09.2021 during the time when the custody of the children with her under this arrangement.

(c) The applicant/mother is also permitted to approach the School authorities to interact with them in order to ascertain the performance of the children in their educational pursuit. In the event of the applicant/mother approaching the School authorities, the School authorities are directed not to cause any impediment to the applicant for her interaction with her  children, as she be be allowed to ascertain from the school management in relation to her children’s conduct and performance.

(d) As far as the handing over of the custody of the children during Dasara Holidays from 09.10.2021 to 18.10.2021 is concerned, this Court is of the view that the respondent/father cannot be completely denied of his custody during the Dasara Holidays. At the same time, the holidays for children is meant for their enjoyment and leisure, free from the grind of School activities. In the said circumstances, having regard to the fact that the children have been with the father for considerable length of time over the years, their enjoyment in the Company of their father cannot be truncated   and given in the exclusive company of the mother for the entire period of holidays.

(e) In order to be fair to both the parents and in view of the extension of custody by one more day (Thursdays), the applicant/mother would be having the custody of the children from 07.10.2021 till the morning of 11.10.2021, immediately followed from the evening of 14.10.2021 until the morning of 18.10.2021.  By this arrangement, the applicant/mother has been entrusted with the custody of the children eight days leaving out only five days for the father. In that view of the matter, the direction sought for exclusive custody of the children by the mother for the entire Dasara holidays, may not be fair and equitable, both from the perspective of the father and also of the children. This prayer is therefore not acceptable and the same is rejected.

 

  1. The above arrangement will be in force for next eight weeks and it will be further reviewed at the instance of either parties on due expiration of the period of this arrangement or even earlier, if any necessity arises as such.

 

  1. Post the matter for further hearing on 30.11.2021.

 

 

17.09.2021

Index: Yes/no

Speaking Order: Yes

cs

 

 

 

  1. PARTHIBAN, J

 

cs

 

 

 

Application Nos.2010 and 2011 of 2021 in                                                                                 O.P.No.443 of 2021

 

 

 

17.09.2021

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