Friday, August 16, 2013

who cares about kid's holidays when u can litigate in courts?? how a wife stops husband taking kids abroad!

  
who cares about kid's holidays when u can litigate in courts?? how a wife stops husband taking kids abroad! 
  
Notes
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* After divorce wife is living in matri home !! probably she has got the house ?
* she also gives very restricted child access to the father / husband 
* father of children (husband) want to take children on holiday
* Initially local holiday permission alone granted by family court 
* Later husband gets permission to go abraod ...peremission to go abraod granted by family court "...The application for modification was granted on the same day by the Family Court and the order dated 19 June 2013 was modified with a direction to the Petitioner to handover custody of both the children at 1 a.m. at the matrimonial home on 1 July 2013......"
* but wife shows some technical grounds and goes on appeal to Bombay HC
* HC says the family court order is set aside 
* so husband is back to sqaure 1 !!

* and who cares about a good holiday when you can litigate in courts ?? 

* there is something called "...in the best interest of the children / best interest of minors ..." and I can't see that at all here ??? or  ?

  
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Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5675 OF 2013
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Dr. Ashrita S. Toshniwal ..Petitioner.
versus
Sandeep S. Toshniwal ..Respondent.
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Ms. Manjula Rao with Mr. Manish Ray for the Petitioner.
Ms. T.F. Irani for the Respondent.
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CORAM : DR.D.Y.CHANDRACHUD, AND
S.C.GUPTE, JJ.
 2 July 2013.
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ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
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The Petition has been placed before this Division Bench in pursuance of the directions issued by the Hon'ble the Chief Justice on 1 July 2013.
 
2. Rule, by consent made returnable forthwith. Counsel appearing on behalf of the Respondent waives service on behalf of the Respondent. By consent, the Petition is taken up for hearing and final disposal.
 
3. The challenge in these proceedings is to an order dated 19 June 2013 passed by the Family Court at Bandra. The Petition was filed before the Court on 28 June 2013 when a copy of the order was not available to the Petitioner. A copy of the order of 19 June 2013 was made available to the Petitioner on 29 June 2013.
 
4. The Petitioner and the Respondent were married on 18 February 2003. They have two daughters : Taniya born on 29 March 2005 and Isha born on 13 April 2008. The children are 8 and 5 years old. The Respondent has instituted proceedings for divorce before the Family Court on 28 September 2011. On 4 July 2012 an order was passed by the Family Court by which an application of the Respondent for permitting him to take the daughters on a vacation to Goa for the period from 5 July to 9 July 2012 was allowed. The Principal Judge of the Family Court in that order, however, clarified that the Respondent was not allowed to take the daughters beyond the jurisdiction of Goa and that he shall submit his passport before the trip. Subsequently on 9 November 2012 a further order was passed by which the Respondent was allowed access to the children between 4 and 6 p.m. at the matrimonial home. In addition, the Respondent was permitted access to the children at all reasonable times of the day, in the matrimonial home. This order was necessitated because while the Petitioner continued to reside in the matrimonial home at Goolrukh, Worli, the Respondent had moved out of the matrimonial home. In the order dated 9 November 2012 the Family Court had specifically held that access outside the matrimonial home at any other place was not advisable, on the prima facie finding that the Respondent was in an intimate relationship with a person other than his wife. On 20 February 2013 the Family Court rejected an application moved by the Respondent seeking overnight access on all weekends and access during the course of the the three major vacations and on other festive occasions, public holidays and birthdays.
 
5. On 23 May 2013, the Respondent moved an application in anticipation of the ensuing summer vacation of the children. By the application, permission was sought for the Respondent to take the children out of Mumbai for a period of seven nights and eight days during the summer vacation. Exhibit A to the application was a letter dated 9 May 2013 of the advocate for the Respondent to the Petitioner's advocate stating that the Respondent desired to proceed on a holiday within India with his daughters during the summer vacation. The application was heard by the Family Court on 4 and 12 June 2013. On 12 June 2013 when the application was placed for orders, passing of orders was deferred. On 19 June 2013, it is common ground that an oral order was pronounced at 6 p.m. by the Family Court allowing the Respondent to proceed with the children on a vacation for seven days between 1 and 7 July 2013, subject to the condition that the mother of the Respondent would accompany them.
 
6. On 26 June 2013 the Petitioner moved an application before the Family Court stating that she apprehended that the children would be taken out of the country under the guise of access. The Petitioner accordingly sought a direction to the Respondent to deposit the passports of the children in Court, since the passports were at that stage in the custody of the Respondent. In his reply to the application, the Respondent stated that the Petitioner was aware of the fact that the children were being taken on a holiday to Singapore. At that stage, it appears that the Respondent had made arrangements for travel from Mumbai to Singapore on 1 July 2013, departing Mumbai airport at 22.15 hrs. The grievance of the Petitioner is that the airline booking confirmation of Singapore Airlines is of 12.58 a.m. on 19 June 2013. On the basis of this, it has been submitted that the Respondent had on the night between the 18 and 19 June 2013 booked the airline ticket even before permission was granted by the Family Court. This has been disputed by the Respondent. Be that as it may, on 28 June 2013 the Respondent addressed an email to the Petitioner at 19.05 hrs stating that he is moving the Family Court on 29 June 2013 for placing the itinerary for the ensuing travel on the record. On 29 June 2013 the Respondent moved an application, at Exhibit 86 for modification of the order dated 19 June 2013 ( and an order dated 27 June 2013 declining stay) for a modification that the period of access would commence from 1 a.m. on 1 July 2013. In his application the Respondent stated that he had booked tickets to proceed to Singapore and that copies of the booking reference were annexed to his reply to the Petitioner's application for stay of the order. The Respondent stated that he had been unable to secure a visa for travel to Singapore and accordingly proposed to take the children to Mauritius on 1 July 2013 until 8 July 2013. The application for modification was granted on the same day by the Family Court and the order dated 19 June 2013 was modified with a direction to the Petitioner to handover custody of both the children at 1 a.m. at the matrimonial home on 1 July 2013.
 
7. The grievance of the Petitioner is that -
 
(i) Though the order of the Family Court was passed on 19 June 2013, a copy of the order was not available until 5 p.m. on 29 June 2013;
 
(ii) The Respondent had moved the Family Court for vacation access on 23 May 2013 on a representation, contained in his advocate's letter which is annexed to the application, stating that the children would be taken to a place within India;
 
(iii) The Family Court when it passed the order dated 19 June 2013 had no occasion to consider whether the children should be allowed to be taken outside India since the fact that the children would be so taken to a place outside India was not disclosed until the Petitioner moved an application for stay of the order of the Family Court;
 
(iv) In the previous orders of the Family Court, the Court had declined to grant even overnight access to the Respondent and hence, the Respondent was duty bound to make a disclosure of the fact that the children were being taken outside India when he moved for vacation access;
 
(v) It was on 29 June 2013 that the Petitioner was informed in Court that the children were now sought to be taken to Mauritius and the Family Court proceeded to modify the earlier order on the same day without adequate notice to the Petitioner and without application of mind as to whether the children should be allowed to be taken outside the country.
 
8. On the other hand, it has been urged on behalf of the Respondent that -
 
(i) The Petitioner is intent on depriving the father of access to the children;
 
(ii) The fact that the children were likely to be taken to Singapore was known to the Petitioner since the Petitioner moved an application on 26 June 2013 for the deposit of the passport of the Respondent;
 
(i) The Respondent as a matter of fact sought a confirmation of the airline bookings only after the order of the Family Court which was passed on 19 June 2013;
 
(ii) The Petition has now been rendered infructuous as a result of the fact that the Respondent was unable to take the children outside India on a vacation as a result of the obstructive attitude of the mother.
 
9. The record before the Court indicates that several orders were passed by the Family Court on 4 July 2012, 9 November 2012 and 20 February 2013. By the first of those orders, the Respondent was permitted to take the children for a vacation to Goa subject to the express condition that the passport of the Respondent would be deposited in Court. The intent of that direction was to ensure that the children would not be taken to a place outside India and the Principal Judge of the Family Court clarified that the children shall not be taken outside the jurisdiction of Goa. In the second of the orders, access was given to the Respondent between 4 and 6 p.m. on every Sunday at the matrimonial home, in addition to which the Respondent was permitted access at any reasonable time of the day. In that order, the Learned Judge of the Family Court was prima facie of the view that access outside the matrimonial home was not desirable having regard to the welfare of the children. The third order noted above rejected the application of the Respondent for wider access during the three main vacations, among other reliefs that were sought.
 
10. In this background, the application that was moved by the Respondent on 23 May 2013 specifically annexed a letter of his advocate informing the advocate for the Petitioner on 9 May 2013 that the Respondent desired to proceed on a holiday within India together with the children. Obviously the nature of the access that would be granted by the Family Court would be based on the disclosure which was made by the Respondent in the application. The Family Court was not apprised of the fact that the Respondent desired to proceed with the children to Singapore. Consequently the order dated 19 June 2013 is completely silent on whether the Respondent should be permitted to take the children to a place outside India. The two daughters of the parties are eight and five years of age and the question as to whether they should be allowed to be taken, albeit for a limited period of time on vacation, outside India is a matter which relates to their welfare. The issue at this stage is not whether the Respondent should or should not be allowed to take the daughters outside India, but whether there was a due disclosure of the fact that the Respondent intended to do so. The record before the Court is indicative of the fact that such a disclosure was not made before the Family Court when the order dated 19 June 2013 was passed. The Respondent, as a matter of fact, has stated in his application at Exhibit 86 which was moved on 29 June 2013 that he had annexed a copy of the ticket booking for Singapore with his reply to the Petitioner's application for stay of the order dated 19 June 2013. The Family Court was moved for modification of the order dated 19 June 2013 by the Respondent on 29 June 2013. On the previous day the Petitioner was informed that the Respondent intended to place his itinerary before the Family Court. Even at that stage, the Petitioner was kept in the dark about the fact that the Respondent intended to proceed with the children to Mauritius. The Petitioner was not even provided with a copy of the order of the Family Court till 5.00 p.m. on 29 June 2013. Nonetheless the application for modification was allowed and an order was passed by the Family Court on the same day, by modifying the time at which access would commence to 1.00 a.m. on 1 July 2013 instead of 9.30 a.m. Obviously this was because the Respondent intended to proceed with the children to Mauritius immediately thereafter.
 
11. In the circumstances, the record before the Court indicates that while passing the order dated 19 June 2013 the Family Court was not apprised of the fact that the Respondent intended to take the children outside India, as a result of which the Family Court has not applied its mind to this aspect. This assumes significance having due regard to the fact that on 4 July 2012 the Family Court had issued directions for the deposit of the passport which was clearly intended to ensure that vacation access would be confined to a place within India. Subsequently on 9 November 2012 and 20 February 2013 the Respondent was denied overnight access. Whether a modification of these conditions is warranted or otherwise, is within the jurisdiction of the Family Court. Undoubtedly orders for access can be modified from time to time keeping in mind the paramount interest and welfare of the children. There can be no gainsaying the fact that both the father and mother are legitimately entitled to have adequate recourse to the company of the children. The issue before this Court is that when a modification is sought of the nature and terms of access, a due and complete disclosure must be made before the Family Court to enable that Court to apply its mind as to whether any modification is warranted. Evidently that was not done in the present case.
 
12. For these reasons, we have come to the conclusion that the order passed by the Family Court on 19 June 2013 as modified on 29 June 2013 is unsustainable and would have to be quashed and set aside. We are not inclined to accept the contention of counsel appearing on behalf of the Respondent that the Petition has been rendered as infructuous and should be dismissed as such. Unless the Court were to address itself to the legality of the order of the Family Court, the Petitioner would necessarily invite the consequences under the law in regard to the order of the Family Court and its compliance. For the reasons which we have indicated, we hold that the order of the Family Court was unsustainable and accordingly quash and set aside the order dated 19 June 2013 as modified. While doing so, we leave it open to the Respondent to move an appropriate application before the Family Court should he desire access during the vacations in future and any such application shall be considered on its own merits in accordance with law. Rule is made absolute in the aforesaid terms.
 
There shall be no order as to costs.
 
(Dr. D.Y.Chandrachud, J.)
 
 (S.C. Gupte, J.) 
 

 

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist