LatestLaws.

com

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision : February 14, 2017
+ MAT.APP.(F.C.) 171/2016
VIKAS AGARWAL ..... Appellant
Represented by: Mr.Arvind Pandey, Advocate

versus

GEETI MATHUR ..... Respondent

Represented by: Ms.Sonam Nagrath, Advocate with
Ms.Mamta Mayar, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE YOGESH KHANNA

PRADEEP NANDRAJOG, J. (Oral)

1. Confronted with the claim of a parent to have either custody or

visitation rights to a child born to the couple, one must proceed on a
presumption that it is in the best interest of the child for the two parents to
equally share parental responsibility of the child, while determining the best
interest of the child.
2. The primary considerations would be : (a) ensuring benefit to the
child of having to spend significant time with both parents to develop a
meaningful relationship; and when there are grandparents, uncles, aunties,
cousins etc., overnight access so that the child gets love and affection from
the extended family; (b) ensuring the need to protect the child from
psychological harm.
3. The number of divorce cases across all sections of the society are on
the increase resulting in rise of bitter child custody battles. Often the

Mat.A.(F.C.) No.171/2016 Page 1 of 4

 LatestLaws.com

innocent children are used as tools of vengeance by vindictive litigants. A

perusal of Article 39 (e) & (f) of the Constitution of India would guide that
of the various fundamental rights of a child, one valuable right is to get love
and affection from both parents, right to quality of life, right to be cared and
the right to develop a sense of belonging.
4. In the aforesaid backdrop we note that the appellant and the
respondent were married on April 30, 1997 and were blessed with a baby
girl on July 15, 2003. Matrimonial disputes surfaced in the year 2005. A
settlement agreement was entered into between the parties on February 03,
2010. Parties obtained divorce by mutual consent. By consent, custody of
the female child was entrusted to the appellant with visitation and interim
custody rights of the respondent recorded between the parties. The
agreement recorded that if the appellant remarried, the respondent would
have a right to the custody of the female child.
5. Appellant got remarried on June 02, 2013. The respondent took
custody of the female child on June 11, 2013. She denied visitation rights to
the appellant on the ground that the settlement agreement between the
parties had expressly mentioned her visitation rights till the female child
was in the custody of the father, but there was an omission to give any
visitation rights to the appellant upon the happening of the condition i.e. he
getting remarried, warranting custody of the female child to be entrusted to
the respondent.
6. The appellant filed an application under Section 26 of the Hindu
Marriage Act, 1955 seeking visitation rights and interim custody during
vacation period. Vide impugned order dated October 17, 2016, noting that
the child evinces no desire to even talk to the father, learned Judge has

Mat.A.(F.C.) No.171/2016 Page 2 of 4

 LatestLaws.com

granted only visitation rights on the third Saturday of each month. The
meeting has been directed to take place in the family court complex. Two
hours is the visitation period.
7. The impugned order records meetings held by the learned Judge with
the child. It is recorded that the child does not desire to meet the father.
8. Now, what baffles this Court is the fact that for three years,
commencing from February, 2010 till June 11, 2013, the female child lived
happily with the father. The mother had liberal visitation rights and even
interim custody during vacation period. It is not the case of the mother that
during this period of three years the child ever complained anything to her
concerning her fathers behaviour. Surprisingly within six months of the
custody being with the mother, the attitude of the child turned not only cold
but positively hostile towards the father.
9. Regretfully, the learned Judge Family Court has not pondered to find
the reason for this sudden behavioural change in the child. Has the mother
poisoned the mind of the child? An attempt ought to have been made to
unravel the truth.
10. The approach in law being, as far as possible, to ensure the child
meeting both parents and spending quality time with both, instant case
warranted the learned Judge Family Court to direct the parents to access a
child counsellor and seek a report from the child counsellor. Help of a
trained person who understands the behaviour of a child and the personality
of a child was warranted in the instant case. Besides, two counsellors being
attached with each family court in Delhi, the learned Judge ought to have
taken the help of the counsellors as well. Directions should have been
issued to the child to interact with the counsellors and the opinion of the

Mat.A.(F.C.) No.171/2016 Page 3 of 4

 LatestLaws.com

counsellors used by the learned Judge.

11. Since this Court does not have family counsellors attached, the best
course available is to restore Guardianship Petition No.24/2014 in the Court
of Sh.B.R.Kedia, Principal Judge, Family Court, Shahdara with a direction
that the learned Judge would identify a child counsellor within two weeks of
receipt of the present order, (the fee of the counsellor to be borne by the
appellant). The female child shall be taken to the counsellor by the
respondent and should the counsellor desire a joint meeting with the couple,
the appellant and the respondent would meet the counsellor.
12. Report would be obtained from the counsellor and keeping in view
the report the Guardianship Petition would be decided afresh within a period
of four months of the date of receipt of the present order.
13. Till then the visitation rights granted under the impugned order to the
appellant shall continue.
14. The parties shall appear before the learned Judge Family Court on
February 27, 2017. The Registry shall send a copy of the present order to
the Family Court concerned through urgent messenger forthwith.
15. Dasti to learned counsel for the parties.
16. No cost.
CM No.43096/2016
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE

(YOGESH KHANNA)
JUDGE
FEBRUARY 14, 2017/mamta

Mat.A.(F.C.) No.171/2016 Page 4 of 4