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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2778 OF 2011
Mrs. Vimi Vinod Chopra .. Petitioner Vs.
Vinod Gulshan Chopra .. Respondent
Ms. Rajani Iyer, Sr. Counsel a/w. Mr. Mayur Khandeparkar a/w. Mr. K. S. Vardhan a/w. Ms. Sapana Rachure i/b T. N. Trapathi & Co. for the Petitioner. Mr. Pradeep S. Chavan for the Respondent.
CORAM : MRS. ROSHAN DALVI, J.
Date of reserving the Judgment : 4th August, 2011. Date of pronouncing the Judgment : 22nd August, 2011.
1. Rule. Returnable forthwith.
2. This Writ Petition is filed by the Petitioner-wife challenging the order of Family Court No.4, Mumbai dated 13.10.2010 allowing the husband's application for striking off her defence. This application came to be made upon the breach of the order of granting access passed by the Family Court. The parties have had numerous disputes and litigations since the husband sued for divorce, an order of injunction in respect of residence of the parties and custody of the children in the Family Court, Bandra, Mumbai on 3rd March, 2008.
3. The parties have three children now aged 16, (2) WP 2778/11
15 & 9 years. The husband applied for access to his children initially on 08.10.2009. The wife resisted that application essentially on the ground that the husband was not attached to the children, was harassing them by spoiling their reputation with their friends with the reason that the children were left alone with no one to play with. The wife contended that the children suffered unreasonable behaviour of the husband and started hating him. She also alleged that the Petitioner dragged them in the litigation and that it is dangerous to allow the Petitioner to take the children for half the vacation. She denied that the access claimed by the Petitioner would be beneficial to the children. The learned Family Court Judge passed an order after interviewing all the three children independently. He observed that the children were reluctant to meet the father. This was when the children were in the custody of the wife. That important fact must be always present to the mind of the interviewer. The consequence of the custody with one parent is often such reluctance. Nevertheless the learned Judge exercised caution. He passed an order of very limited access. The access was to be for one hour each in a fortnight on 2 Saturdays a month. He observed that that would be gradually increased. He also observed that for the welfare of the children, love and affection between the children and the father should be developed and, therefore, access was absolutely necessary. He rejected the Diwali vacation access of the Diwali of 2009. Consequently he partly (3) WP 2778/11
allowed the application. He directed the wife to bring all her children to the Family Court Children Complex on 1st and 3rd working Saturdays of each month. He directed the husband to apply for future vacation access later. The order has been passed since 14.10.2009.
4. The husband states that it has never been complied on any of the working Saturdays directed. He, therefore, claims that the very beginning was not made. He claims that he regularly attended the children complex and the wife always absented herself. She failed to bring the children as directed. He claims that the wife never wanted the children to be with their father though the children would be very happy with him.
5. Though this order is stated to be breached, both parties have produced various other applications, replies and orders in the aforesaid petition made by and between the parties. The application was made on 8th October, 2009. The reply of the wife has been filed on 12th October, 2009. The children were brought to Court on 12th October, 2009 as required by the practice of the Court for counselling. The wife as well as the children had to meet the Counsellor also on 12th October, 2009. It appears that there were disputes even at the time of that interview. The husband has filed an affidavit showing what transpired before the Counsellor at the time of counselling by (4) WP 2778/11
his affidavit dated 12th October, 2009. The wife has filed the reply by her affidavit after the aforesaid order came to be passed on 5th November, 2009. It is hardly material to go into the allegations and counter-allegations by the parties. What is material is the order of access which must be obeyed or at least strived to be obeyed.
6. It has been the case of the wife that the children do not want to meet the father. She claims that she cannot be liable for any breach of the order of access on their account. She claims that she has not willfully defaulted the order of the Court. Hence she claims that her defence cannot be struck off under Order XXXIX Rule 11 of the Code of Civil Procedure which is the specific provision in the Code of Civil Procedure in the State of Maharashtra brought in by the High Court amendment.
7. The fact remains that access is not given to the husband. To show that her default is not willful it is for the wife to show that this is despite her endevour to obey the order of the Court and her failure for reasons totally beyond her control. The wife has shown nothing of the kind.
8. The husband applied for specific access to his son on his birthday on 01.04.2010. It is his case that the wife, instead of bringing the boy child alone brought her two daughters also. They prevented their (5) WP 2778/11
brother from meeting and enjoying with the father. Nevertheless the Court staff and Counsel assisted the father of the child to celebrate the birthday.
9. The husband applied under the aforesaid provisions for striking off her defence on the ground of breach of order of access on 20.07.2010. The wife replied to the application on 25.07.2010 setting out the aforesaid facts and claiming total lack of willful default.
10. In an earlier Writ Petition filed by the wife being Writ Petition No. 6930 of 2010 this Court itself, passed an order for the Child Specialist (Child Counsellor) to interview the parents jointly as well as singly, to interview the three children jointly as well as singly and make a report. The Child Counsellor met the children on three specified dates and the parents on four other dates and then all the parties on one last date. The report has been made to the Court which shall be considered presently.
11. The wife has applied for review of the order of access which came to be rejected. She has applied also for stay of the order which came to be rejected. The wife also applied for cancellation of the order of access. The cancellation has also not been granted. All these rejections have not been challenged. The order of access continued.
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12. She has thereafter applied for modification of the order of access. Part modification has been granted. The access of the two girl children, which has been resisted by the girls, has been not allowed and not claimed by the father. The access to the boy child has been continued and not modified. That has not been granted to the father. The modification order has been passed on 31.03.2011 well after the impugned order. The challenge to the earlier order has been made prior to the modification. It has also been considered prior to the modification. Nevertheless since it argued on behalf of the wife that modification has already been granted as per the liberty granted by this Court itself, the challenge in this Writ Petition may be seen only with regard to that part of the order which still subsists for compliance and obedience. That is the order with regard to only the boy child which would be considered now in this Writ Petition.
13. Upon the admitted fact that the child was not even brought to the Family Complex on alternate Saturdays as directed, it is for the wife to show how she strived to carry out an order but failed. She has not shown that to the learned Judge at all. Upon my specific query in that regard Ms. Iyer stated that the child was brought to the Family Court on 12.10.2009, 01.04.2010, 07.08.2010, 01.04.2011 and 19.04.2011. In view of this reply these dates must be considered. (i)12.10.2009 was the first date of hearing of the (7) WP 2778/11
application for access which was filed on 08.10.2009. That is the date on which the parties met the family Counsellor. The parties filed various applications including the reply to the interim application for access itself. The access was not even considered or ordered then. Aside from parties having various disputes nothing else transpired.
(ii)01.04.2010 was the son's birthday. That was the specified date for access to the boy child alone, yet the girl children were brought also by the mother. It is only upon the intervention of the staff of the Family Court that access could be allowed.
(iii)07.08.2010 was the date when the learned Judge called the wife in his Chamber. She was directed to give access. The husband attended in the children's complex at 4 p.m. The wife went to the children's complex, signed her attendance at 4 p.m. and left with the child. The endorsement of the Officer of the Family Court in the register maintained by the Family Court shows that the wife came to the children's complex and immediately went away without allowing the child to meet the father. Hence the access was not given.
(iv)01.04.2011 was the next birthday of the child. The child was shown to be totally averse to the father.
(v)19.04.2011 was the date when the mother brought (8) WP 2778/11
the child to the High Court before Justice Ganoo who interviewed the child. The order of Justice Ganoo in this Petition shows that he asked the child certain questions. The child declined to meet the father, see his face or go for a film with the father. Justice Ganoo talked with the child for 5-7 minutes and noted that the child was not prepared to meet the father. Justice Ganoo requested both the Advocates to suggest where access could be given to the father other than the children complex at Family Court. The Advocates assured the Court that they would come up with some solution to see that the child was made available at a particular place so that the father can meet the child and make an attempt to be with him for a reasonable time. Thereafter the Petition has been adjourned from time to time and has reached hearing only today.
14. The argument of Ms. Iyer that the mother cajoled the child but the child failed to listen cannot be seen from the aforesaid dates of access which the learned Counsel has enumerated. The access was to be given twice in a month. It was for one hour each time. If the child was unhappy with the venue of the access as was noted by the Justice Ganoo, and alternate venue could have been suggested. That was never done in the Family Court. It has not been done even in the High Court and despite the order of Justice Ganoo dated 19th April, 2011, there is (9) WP 2778/11
absolutely nothing produced to show any attempt made by the mother even today for the child to meet the father which would be in the best interest of the child, their disputes and differences notwithstanding. In fact only what has been seen is that the mother resisted the order of access by all possible modes - the application for review, stay, cancellation and modification. Even after the modification of the order the part which remained has not been complied.
15. Counsel on behalf of the father drew my attention to the register maintained by the Family Court in the children's complex to show the access granted. The register makes interesting reading. It shows all the access dates from 07.11.2009 when the hourly access had to commence after the Diwali vacation until 05.02.2011 when the father has attended alone. Neither the mother nor the child attended. Their absence has been marked. The only exception is the date of 07.08.2010. That was the date when the wife was called to the Chamber of the Judge for interview. The wife brought the children. She had to attend as directed in the children's complex. She attended in the children's complex at 4 p.m., signed the register and took away the child. The Officer of the Court has made an endorsement to that effect. It is reported that the access was not given.
16. There cannot be a case of more contemptuous conduct of the wife. The wife has not only ignored, (10) WP 2778/11
not only failed to endevour to effectuate the order, but has willfully and blatantly breached the order of access. She has consistently defaulted in bringing the child to the children's complex as directed. She has not even cared or endevoured to make a modification of the order as regards the time or the venue to make it more convenient, comfortable or suitable for the child. The entire conduct is to deny the husband the access wholly and completely. It is an egregious act of blatant defiance of the order of the Court. Her applications, one after another review stay, cancellation and modification are testimony to her consistent intention to breach the order of access.
17. My attention has been drawn also to the Child Counsellor's report. The Child Counsellor has met with the children thrice. She has met with the parents singly as well as all the parties jointly. She has made a home study as well as school study of the child. Her observations and impressions after various sessions with all the parties are that both the parents love and are concerned for their children but their individual differences, grudges and attitudes do not help them to solve their issues. She has reported that the husband to a certain extent is open and acceptive but the wife gets angry and refutes all attempts.
18. This observation is mirrored in the acts of (11) WP 2778/11
the wife after the order of access. Though this observation was not before the learned Judge at the time he passed the order of access, it has been relied upon by both the Counsel before me and speaks eloquently of how well the Child Counsellor has studied the personality of the parties and how much it is reflected in the acts of the wife by way of complete and total breach of the order of the Court much as she refuted all attempts of the Counsellor at the counselling sessions.
19. In fact it may be mentioned that the Counsellor has recommended and suggested whilst concluding her report, that the children's access with the father should be upheld and facilitated. She has also suggested, as Justice Ganoo did, that access could be given somewhere outside the court, e.g. with an NGO as the Court environment makes the children uncomfortable. She has also suggested more counselling sessions with parents to help them view the children from the view point of the interest of the children as is necessary.
20. It may be mentioned that since this application is as fragile as the order of access itself and was required to be viewed with more empathy then in the case of a default relating to a property or such other matter, this Court itself endevoured to ascertain, if any other modalities for more comfortable access could be worked out. The Court (12) WP 2778/11
could make no headway in view of the complete denial of any such exercise on the ground that the Court cannot force an access which is resisted by the child.
21. It need hardly be mentioned that if a mother in such total breach of the order of access as not to attend a single day in the children's complex as directed were to be allowed to contend before the Court that that was because her child alone resisted access vehemently as to make her fail in her attempts at cajoling the child into getting the access, the orders of the Court would be a complete mockery. No order of access could be worked out upon a mere say of a custodial parent. It may also be mentioned that in the extreme case of a child who would so vehemently resist meeting his father, the extreme reasons must be shown. The oral case that the father was not attached to the children and was harassing children and was spoiling their reputation would not suffice. The father must be made out to be so thoroughly despicable that no child could be expected to even see his face. It is no use for the child who has been brought before even a Judge or a Counsellor to merely state that he would not want to meet his father or see his face.
22. It may also be mentioned that the child counselling which has been introduced in the Family Court is an essential and necessary facility of experts provided in the Family Court with an end that (13) WP 2778/11
children from broken homes get affection and care of both parents so indispensable to their balanced growth and upbringing. The report of a Child Counsellor also must, therefore, be heeded, in fact, obeyed by the Court. They are experts in their own field in which expertise judicial minds lack. It is a wholly different art as well as science. It was, therefore, deemed fit to have their services as an essential ingredient in the infrastructure of the Family Court to avert damage to the child by timely intervention of such specialised expertise.
23. It is clearly seen that the Petitioner-wife has been in total and complete breach of the order of access. She falls squarely within the mischief of Order XXXIX Rule 11 of the Code of Civil Procedure. In the normal course her defence having been struck off is a very correct order passed by the learned Family Court Judge. The learned Judge has technically rightly considered that the Order XXXIX Rule 11 as drafted does not require willful or deliberate act for dismissing the Suit or striking off the defence. A reading of the order makes that position clear. Rule 11 of Order XXXIX is other than Rule 2A of the said Order which deals with contemptuous and willful default of an order of injunction. However Counsel on behalf of the wife has drawn my attention to an order of Division Bench of this Court in the case of Ramavatar Surajmal Modi Vs. Mulchand Surajmal Modi 2004 Bom.C.R. 298 in this regard. That was a Suit (14) WP 2778/11
between brothers. The Plaintiff claimed to be the owner of a flat. Court Receiver was appointed. He was to take formal possession. The Defendant was appointed his agent. The Defendant had to pay the royalty. The royalty was determined but not paid. It was modified and reduced, yet not paid. The arrears were directed to be paid by the installments at which time the Defendant handed over the possession back to the Receiver instead of paying all the arrears. The Plaintiff sought to strike off the defence. It was held that the Order XXXIX Rule 11 was directory. The Court had a discretion not to strike off the defence if the Court felt that such an order was not deserved. Sub-rule 2 of the Order which allows the Court to restore or dismiss a Suit or hear a party in defence upon such terms and conditions that it though fit to impose was considered to hold that if a party makes amends for the defaults or the contravention or the breach to the satisfaction of Court, the party could be given that opportunity. It considered the Supreme Court Judgment in the case of M/s. Babbar Sewing Machine Co. Vs. Tirlok Nath Mahajan AIR 1978 SC 1436. That Judgment considered the power of dismissal of a Suit or striking off a defence under Order 11 Rule 21 which deals with discovery and inspection of documents. That Judgment held that only upon obstinacy or contumacy and willful attempt to disregard the order of discovery of documents can a Suit be dismissed or a defence could be struck off. However it was observed from such analogy that even (15) WP 2778/11
under Order XXXIX Rule 11 the default must be willful. It is argued by Ms. Iyer on behalf of the wife that the impugned order shows that even if the default is not willful or deliberate a mere disobedience would suffice. I do not read into the impugned order any such observation. All that the impugned order observes is a lack of the word willful or deliberate in Order XXXIX Rule 11 which is a fact. Of course, the Judgment in the case of Ramavatar Modi (supra) though not cited before the learned Judge must be abided by this Court as well as the Family Court. It must be seen whether the default is willful. It is seen that it so. This is a striking and classic case of a total and complete willful default throughout the period between passing of the order of access and making of the application for striking off the defence of the wife as also thereafter.
24. It was also contended that the application was barred by resjudicata and could not have been filed. Ms. Iyer sought to show me an application taken out by the husband for striking off the defence of the wife dated 22nd February, 2010. The wife replied to that application on 2nd March, 2010. That application was under Order XXXIX Rule 11 and Order XXXX Rule 1 of the Code of Civil Procedure. The application was in respect of an undertaking given by the wife inter alia in respect of a flat in dispute between the parties. The entire application, except the penultimate paragraph, is only in respect of the (16) WP 2778/11
flat. Consequently that application is made not only under Order XXXIX but under Order XXXX as a Court Receiver was sought to be appointed of that flat. Only in the penultimate paragraph, a statement also with regard to the breach of the order of access is made. No relief is claimed in that behalf. That issue has neither been agitated by the parties nor considered by the Court nor is there any order passed in respect thereof. The order of the learned Judge under the said application is passed only in respect of the flat of the parties. The wife was not seen to be in default in breach of her undertaking. Hence the application has been dismissed. It is improper to even contend that an application for a completely different breach at different times upon another order which has been filed later could be resjudicata. The learned Judge has correctly considered that aspect also.
25. It is seen that the impugned order is correct. It needs no interference. The wife has been in continuous willful breach of the order of access. There has no absolutely no attempt by her to even try to see reason, make amends, apply for modification to effectuate the order more comfortably or suitably. Indeed she is a party whose defence deserves to be struck off.
26. However only in view of the fact that the impugned order (even after considering the (17) WP 2778/11
modification obtained by the wife after the impugned order was passed) is an order of access of a child to his father which would require to be effectuated not to grant the father any "rights" he may claim but to grant the child the invaluable right of having his father's care and affection, the wife deserves to be given one more opportunity to mend her ways to allow the child access to the father by herself not interfering therewith directly or indirectly. To that end the wife must comply with the recommendations and suggestions of the Child Counsellor/Child Specialist in her report made to this Court which has been taken by both the parties. Hence instead of simplicitor dismissing her Writ Petition, it is disposed of with directions as follows.
27. The Petitioner wife Vimi Vinod Chopra shall attend before the Child Counsellor/Child Specialist of MUSKAN, TISS, Ms. F. Italia, initially on Saturday, 3rd September, 2011 at 11 a.m. The husband shall also attend before her on that date. The Child Counsellor shall advise the parties an alternate forum at any NGO's venue other than the Children's Complex where the child shall thereafter be brought for access.
28. The Petitioner wife shall bring the child at the venue given by the Child Counsellor on every 1st and 3rd Saturdays beginning from 3rd September, 2011 at 4 p.m. She shall not bring her daughters to the said venue on any date of access. She shall leave the (18) WP 2778/11
child with the NGO person suggested by the Counsellor and leave the NGO premises forthwith. The Respondent husband shall meet the child alone. He shall return the child at 5 p.m.
29. If the above directions are not followed on a single date of access from 3rd September, 2011, the defence of the Petitioner wife shall stand struck off and the learned Family Court Judge shall proceed with and dispose of the Petition filed by the Respondent husband herein.
30. Rule is made absolute in terms of the above directions.
31. Application for stay of this order is refused.
(ROSHAN DALVI, J.)