W.P.(CRL)/1757/2019 of ASHISH DUBEY Vs THE STATE (GOVT OF NCT OF DELHI) & ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 21.01.2020

W.P. (CRL) 1757/2019, Crl. M.A. 12631/2019, 12684/2019 & 12950/2019

ASHISH DUBEY

..... Petitioner

versus

THE STATE (GOVT. OF NCT OF DELHI) & ORS. ..... Respondents

Advocates who appeared in this case:

For the Petitioner: Mr. N. Hariharan, Senior Advocate with Mr. Tanmaya Mehta, Mr.Gaurav Kejriwal, Mr. Sanjay Abbot, Mr. H. Pillai, Mr. Siddharth SinghYadav and Mrs. Vandana Kejriwal, Advocates with petitioner in personFor the Respondents: Ms. Kamna Vohra, ASC with SI Mahipal Singh, PS Hauz Khas.Ms. Priya Hingorani, Senior Advocate with Mr. Sarvesh Chowdhry andMs. Ayushi Nagar, Advocates with respondent No.3 in person.

CORAM:

HON'BLE MR. JUSTICE SIDDHARTH MRIDULHON'BLE MR. JUSTICE I.S. MEHTA

J U M N T

SIDDHARTH MRIDUL, J (OPEN COURT)

1. The present petition under Article 226 of the Constitution of India,essentially prays for direction to Ms. Sara Carrierre Dubey,respondent No.3 (hereinafter referred to as the ‘mother’), the wife ofMr. Ashish Dubey, the petitioner herein, (hereinafter referred to as the‘father’), to produce Ms. Ananya Dubey and Master NathanKarttikeya Dubey, the minor children of the estranged couple, agedabout 10 years and 8 years respectively, before this Court or theessentially prays for direction to Ms. Sara Carrierre Dubey,respondent No.3 (hereinafter referred to as the ‘mother’), the wife ofMr. Ashish Dubey, the petitioner herein, (hereinafter referred to as the‘father’), to produce Ms. Ananya Dubey and Master NathanKarttikeya Dubey, the minor children of the estranged couple, agedabout 10 years and 8 years respectively, before this Court or the

Family Court, so as to prevent them from being removed from theterritorial jurisdiction of this Court, as is alleged to have attempted inthe past.

2. Mr. N. Hariharan, learned Senior Counsel appearing on behalf of thefather invited our attention to the decision rendered by the CoordinateBench of this Court in W.P. (Crl.) No.357/2018 titled as ‘Kiran Lohiavs. The State Govt. of NCT of Delhi and Ors.’; decided on01.05.2018, to urge that, although, the present habeas corpus petitioncan not ordinarily be converted into custody proceeding in respect ofminor children; and the said question would statutorily and necessarilyhave to be determined by the Family Court concerned in anappropriate proceeding; however, an interim arrangement qua thevisitation of the minor children, can in view of the said decision, bedirected by this Court in the present proceeding.father invited our attention to the decision rendered by the CoordinateBench of this Court in W.P. (Crl.) No.357/2018 titled as ‘Kiran Lohiavs. The State Govt. of NCT of Delhi and Ors.’; decided on01.05.2018, to urge that, although, the present habeas corpus petitioncan not ordinarily be converted into custody proceeding in respect ofminor children; and the said question would statutorily and necessarilyhave to be determined by the Family Court concerned in anappropriate proceeding; however, an interim arrangement qua thevisitation of the minor children, can in view of the said decision, bedirected by this Court in the present proceeding.3. In this behalf, our attention is further invited to the recent decision ofthe Hon’ble Supreme Court of India in Crl.A. 127/2020 titled as‘Yashita Sahu vs. State of Rajasthan & Ors.’, decided on 20.01.2020;to urge that, the role of the High Court in examining the aspect ofcustody of minor children, is premised on the touchstone of theprincipleofparens-patriae,andthatthelatter’swelfare,isaxiomatically the paramount consideration.the Hon’ble Supreme Court of India in Crl.A. 127/2020 titled as‘Yashita Sahu vs. State of Rajasthan & Ors.’, decided on 20.01.2020;to urge that, the role of the High Court in examining the aspect ofcustody of minor children, is premised on the touchstone of theprincipleofparens-patriae,andthatthelatter’swelfare,isaxiomatically the paramount consideration.

4. It is, in this behalf, and backdrop that Mr. N. Hariharan, learnedSenior Counsel appearing on behalf of the father submits that, duringthe pendency of the proceedings before the Courts of CompetentJurisdiction, including the Family Court-in relation to the custody ofthe children-in view of the best interest of the children, an interimSenior Counsel appearing on behalf of the father submits that, duringthe pendency of the proceedings before the Courts of CompetentJurisdiction, including the Family Court-in relation to the custody ofthe children-in view of the best interest of the children, an interim

arrangement qua their visitation be directed, till such time that, theguardianship petition instituted on behalf of the mother, beingG.No.15/19 titled as ‘Sara Carriere vs. Ashish Dubey’ pendingadjudication before the learned Principal Judge, Family Courts, South,Saket, is adjudicated, in accordance with law.

5. As eloquently observed by the Hon’ble Supreme Court of India inYashita Sahu, (supra), the child is the victim in custody battles. Achild requires the love, affection, company and protection of bothparents.This is not only the requirement of the child, but ishis/her basic human right. Just because the parents are at warwith each other, does not mean that the child should be denied thelove, affection and care or protection of any of the two parents. Achild is not an inanimate object which can be tossed from oneparent to the other. Every separation, every re-union, may have atraumatic and psychosomatic impact on the child. Therefore, it isto be ensured that the court weighs each and every circumstancevery carefully before deciding how and in what manner thecustody of the child should be shared between both the parents.Even if the custody is given to the one parent, the other parentmust have sufficient visitation rights to ensure that the child keepsin touch with the other parent and does not lose social, physicaland psychological contact with anyone of the two parents.Yashita Sahu, (supra), the child is the victim in custody battles. Achild requires the love, affection, company and protection of bothparents.This is not only the requirement of the child, but ishis/her basic human right. Just because the parents are at warwith each other, does not mean that the child should be denied thelove, affection and care or protection of any of the two parents. Achild is not an inanimate object which can be tossed from oneparent to the other. Every separation, every re-union, may have atraumatic and psychosomatic impact on the child. Therefore, it isto be ensured that the court weighs each and every circumstancevery carefully before deciding how and in what manner thecustody of the child should be shared between both the parents.Even if the custody is given to the one parent, the other parentmust have sufficient visitation rights to ensure that the child keepsin touch with the other parent and does not lose social, physicaland psychological contact with anyone of the two parents.6. We hasten to add, however, that one parent may in the facts andcircumstances of particular case, be denied visitation rights orcontact with the child but only for substantial and for compellingreasons. In this behalf, we must also observe that, it is the case of Ms.circumstances of particular case, be denied visitation rights orcontact with the child but only for substantial and for compellingreasons. In this behalf, we must also observe that, it is the case of Ms.

Sara Carriere Dubey, the mother of the minor children of the estrangedcouple that, Mr. Ashish Dubey, the father is violent and abusive. It isin this context that, it is urged by Ms. Priya Hingorani, learned SeniorCounsel appearing on behalf of the mother that, although, she does notoppose supervised visitation of their minor children by the father, sheis vehemently opposed to unsupervised or overnight visitation beinggranted to the latter.

7. We have, on previous dates of hearing, had occasion to interact withthe minor children at length in Chambers and consequently, issueddirections, with the consent of the parties to provide appropriatecounseling to them, in order to secure their emotional well-being. It isfurther pertinent to observe that Ms. Swati Shah, the Counsellorattached with the Delhi High Court Mediation and ConciliationCentre, was appointed vide our order dated 05.12.2019, in thepresence of and with the consent of the parties, for the said purpose.the minor children at length in Chambers and consequently, issueddirections, with the consent of the parties to provide appropriatecounseling to them, in order to secure their emotional well-being. It isfurther pertinent to observe that Ms. Swati Shah, the Counsellorattached with the Delhi High Court Mediation and ConciliationCentre, was appointed vide our order dated 05.12.2019, in thepresence of and with the consent of the parties, for the said purpose.

8. The Counsellor’s report dated 13.01.2020, is on record and copiesthereof, have been provided to the parties.thereof, have been provided to the parties.

9. perusal of the Counsellor’s report reveals that although, there wassome initial hesitation on the part of the minor son-although the minordaughter was comfortable with her father from the very beginning-during the course of three meetings, the children have readily andcomfortably interacted with him; and in fact, have enjoyed playingboard games with him.some initial hesitation on the part of the minor son-although the minordaughter was comfortable with her father from the very beginning-during the course of three meetings, the children have readily andcomfortably interacted with him; and in fact, have enjoyed playingboard games with him.

10. The Counsellor has further expressed the view that, during the threemeetings, there was some composite interaction between the family;and although the children were meeting their father after gap ofmeetings, there was some composite interaction between the family;and although the children were meeting their father after gap of

almost six months, there existed latent bond between them, whichcame alive once they met him and that they got along well with eachother. The Counsellor also opined that the children are willing to meettheir father and look positively forward to such meetings.

11. Serious objections have been articulated on behalf of the mother tothe Counsellor’s report, inter alia, on the premise that the same wasone sided, without due consideration of the mother’s concerns and acomplete mis-representation of what transpired at the meetings.the Counsellor’s report, inter alia, on the premise that the same wasone sided, without due consideration of the mother’s concerns and acomplete mis-representation of what transpired at the meetings.

12. It has been urged by Ms. Priya Hingorani, learned Senior Counselappearing on behalf of the mother that, the Counsellor is notadequately qualified to counsel the minor children and that the latterare already undergoing treatment from qualified Psychologist.appearing on behalf of the mother that, the Counsellor is notadequately qualified to counsel the minor children and that the latterare already undergoing treatment from qualified Psychologist.

13.Umbrage also expressed on behalf of the mother, at the purportedalarming circumstance that, during one of the meetings, the fatherforced his minor son to sit on his lap, and the latter was exceedinglyuncomfortable and disturbed at the prospect.alarming circumstance that, during one of the meetings, the fatherforced his minor son to sit on his lap, and the latter was exceedinglyuncomfortable and disturbed at the prospect.

14. We do not propose, in view of the limited jurisdiction proposed to beexercised by us, to dwell at length on the above objections articulatedhereinabove; save and except to observe that, in terms of the ratio ofthe decision of the Hon’ble Supreme Court of India, in Civil AppealNo.1694/2019titledas‘PerryKansagravs.SmritiMadanKansagra’, reported as 2019 SCC online SC 211; the presentCounsellor having been appointed by Committee of the High Court,and entrusted by this Bench to assist in counseling the minor childrenof the contesting parents with the latter’s consent; ought not to bedisparaged in this manner. We do not, therefore, see any reason whyexercised by us, to dwell at length on the above objections articulatedhereinabove; save and except to observe that, in terms of the ratio ofthe decision of the Hon’ble Supreme Court of India, in Civil AppealNo.1694/2019titledas‘PerryKansagravs.SmritiMadanKansagra’, reported as 2019 SCC online SC 211; the presentCounsellor having been appointed by Committee of the High Court,and entrusted by this Bench to assist in counseling the minor childrenof the contesting parents with the latter’s consent; ought not to bedisparaged in this manner. We do not, therefore, see any reason why

the Counsellor’s report ought to be eschewed from consideration.

15. In view of the foregoing discussion and without expressing any viewon the merits of the case and further clarifying that, it is neitherappropriate nor feasible to determine the respective claims for custodyof the minor children in the instant case, and simultaneously directingtheconcernedFamilyCourttoexpeditethehearingoftheGuardianship petition bearing No.15/19 pending adjudication beforeit, in particular, any application for visitation that may be caused to befiled by either of the parties; we are of the view that, it wouldimperative in order to secure the paramount welfare of the minorchildren of the parties, to direct as under:on the merits of the case and further clarifying that, it is neitherappropriate nor feasible to determine the respective claims for custodyof the minor children in the instant case, and simultaneously directingtheconcernedFamilyCourttoexpeditethehearingoftheGuardianship petition bearing No.15/19 pending adjudication beforeit, in particular, any application for visitation that may be caused to befiled by either of the parties; we are of the view that, it wouldimperative in order to secure the paramount welfare of the minorchildren of the parties, to direct as under:

(i)The father is permitted to have visitation rights of his minorchildren between 11:00 am and 04:00 pm on every Saturdayand Sunday, so as to ensure that they remain in touch with himsocially, physically and psychologically;children between 11:00 am and 04:00 pm on every Saturdayand Sunday, so as to ensure that they remain in touch with himsocially, physically and psychologically;

(ii)The mother, needless to state, shall continue to have theircustody, till the present direction is modified or altered by theCourt of Competent Jurisdiction, in accordance with law, afteraffording hearing to the parties.custody, till the present direction is modified or altered by theCourt of Competent Jurisdiction, in accordance with law, afteraffording hearing to the parties.

(iii)The mother shall handover the custody of the minor children tothe father each succeeding Saturday at Sowgood LearningFarm, F-20, Ansal Villas, Sat Bari, New Delhi, Delhi 110074,at sharp 11:00 am; and the father shall return the custody of thechildren to the mother, at the reception of the Siri Fort SportsComplex, August Kranti Marg Khel Gaon, Delhi 110049, at04:00 pm on the same evening.the father each succeeding Saturday at Sowgood LearningFarm, F-20, Ansal Villas, Sat Bari, New Delhi, Delhi 110074,at sharp 11:00 am; and the father shall return the custody of thechildren to the mother, at the reception of the Siri Fort SportsComplex, August Kranti Marg Khel Gaon, Delhi 110049, at04:00 pm on the same evening.

(iv)Similarly, on every succeeding Sunday, the mother shallhandover the custody of the minor children to the father, at thereception of the Siri Fort Sports Complex at 11:00 am, and thefather shall return the custody of the children to the mother atthe said reception of the Siri Fort Sports Complex, at 04:00 pmon the same evening.handover the custody of the minor children to the father, at thereception of the Siri Fort Sports Complex at 11:00 am, and thefather shall return the custody of the children to the mother atthe said reception of the Siri Fort Sports Complex, at 04:00 pmon the same evening.

16. It is made clear that, during the time when the father is visiting withthe children, he shall do so, without being hindered or supervised bythe mother in any manner.the children, he shall do so, without being hindered or supervised bythe mother in any manner.

17. It is further directed that, the father shall ensure that the minorchildren are escorted to all the classes and birthday parties and extra-curricular activities, as intimated to him by the minor children, withoutdemur.children are escorted to all the classes and birthday parties and extra-curricular activities, as intimated to him by the minor children, withoutdemur.

18. No other directions are prayed for.With the above directions, thepresent writ petition is partly allowed and disposed of accordingly.Pending applications also stand disposed of.present writ petition is partly allowed and disposed of accordingly.Pending applications also stand disposed of.

19. copy of this order be given dasti under signature of Court Master tothe learned counsel appearing on behalf of the parties.the learned counsel appearing on behalf of the parties.

SIDDHARTH MRIDUL(JUDGE)

I.S. MEHTA(JUDGE)

JANUARY 21, 2020/as/d