Saturday, 3 June 2017

When mother can be denied custody of child?

The net result of foregoing discussions goes to show
that Ms.Janhavi was found to be hurt and injured on 28th January
2017 and 18th February 2017 when her medical examination was
done by the competent Medical Officer.   It is averment of her
father   that   the   respondent­mother   is   the   cause   behind   those
wounds.  There is duly sworn testimony to this effect on record.
As against this, it is the contention of the respondent­mother that
Ms.Janhavi was not in her custody on those two dates and she has
not wounded Ms.Janhavi.  Be that as it may, but the case in hand
appears   to   be   a   clear   case   of   a   child   abuse.     I   have   already
mentioned   that   welfare   of   a   child   is   paramount   consideration
while deciding the issue regarding the custody of a minor child.  In
the case in hand, Ms.Janhavi is seen to have been traumatized and
physically injured not once but on two occasions in the process of
giving access.   Report of her psychological evaluation done by a
competent disinterested Child Psychologist will give some clue, as
to who was the author of wounds suffered by Ms.Janhavi and the
reason of her apprehension and reluctance to join company of her
mother.  Ms.Janhavi, since her birth, is undoubtedly in custody of
her father­the petitioner.   As such, looking to the aspect of her

safety and wellbeing, she needs to be continued in his custody till
her psychological evaluation by the expert Child Psychologist for
ascertaining her behavioral issues and issue of a child abuse.  The
respondent­mother is objecting appointment of Child Psychologists
from the list given by the petitioner­father.  Her learned Advocate
states that by tomorrow, he will submit another list of expert Child
Psychologists for consideration of this Court.   Keeping in mind
welfare of minor female child Ms.Janhavi, I proceed to pass the
following order as an interim measure :
(i) Until   further   order,   impugned   order   dated   25th  April
2017 passed by the learned Family Court, Mumbai so far
as   relates   to   granting   access   of   Ms.Janhavi   to   the
respondent/mother for the period from 29th May 2017 to
3
rd June 2017 is stayed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5700 OF 2017
Anirudha Herwadkar 
V/s.
Namita Herwadkar 

CORAM : A.M.BADAR J.

DATED : 29th May 2017.



1 By this petition, petitioner­father of six and half years
old female child Janhavi is challenging the order dated 25th April
2017 passed by the learned Family Court, Bandra in Petition No.D­
77 of 2012 filed by the respondent herein­mother of the female
child named Janhavi.
2 The impugned order dated 25th April 2017 is directing
the   petitioner­father   to   give   access   to   the   respondent­mother
during summer vacation for the period from 29th May 2017 to 3rd
June   2017   by   taking   minor   female   child   Janhavi   from   the
Marriage Counselor attached to the Family Court, on 29th  May
2017.

3 Heard   the   learned   Advocate   appearing   for   the
petitioner­father of Ms.Janhavi.   She argued that Ms.Janhavi is
taking education in IInd standard.  It is submitted that marriage
between the parties was solemnized in the year 2007 and Janhavi
was born out of this wedlock in the year 2010.   The learned
Advocate for the petitioner­father further argued that finally on
23/03/2012, respondent­mother deserted the petitioner­father so
also Ms.Janhavi, which has resulted in filing of the petition for
divorce   as   also   for  permanent   custody   by   the   petitioner­father
before the Family Court.  It is further argued that during pendency
of this petition, access was regularly given and Ms.Janhavi was
used to be given in custody of the respondent­mother from time to
time as per agreed terms between the parties.  It is submitted that
Ms.Janhavi used to be with her mother on first and third Saturday,
so also in winter and summer vacation.
4 According to the learned Advocate for the petitionerfather
on 28th  January 2017 at the premises of residence of the
petitioner, Ms.Janhavi was traumatized by the respondent­mother.
She   was   then   medically   examined   by   the   petitioner   on   28th
January 2017 itself and she was found to have suffered injures.
Reliance is placed on affidavit on record page 169 to demonstrate
how   Ms.Janhavi   came   to   be   injured   at   the   hands   of   the
respondent­mother.   It is further argued that the same incident
came to be repeated on 18th February 2017 also and, therefore, the
petitioner­father   got   his   minor   daughter   Janhavi   medically

examined.  My attention is drawn to injury certificate at page 162
and 180 of the record apart from pleadings in affidavit.  With this,
the   learned   Advocate   appearing   for   the   petitioner   vehemently
argued   that   the   application   for   recall   of   access   filed   by   the
petitioner ought to have been granted by the leaned Family Court
instead   of   granting   access   to   the   respondent­mother   in   the
summer vacation.   It is further argued that though the learned
Judge of the Family Court has accepted the contention of the
petitioner­father   that   Ms.Janhavi   needs   to   be   taken   to   Child
Psychologist for her psychological evaluation in order to ascertain
the  reason  of  her refusal  to  join  company  of  her mother,   the
learned   Judge   erred   in   appointing   Dr.Harish   Shetty   for   this
purpose.   It is pointed out that Dr.Harish Shetty is a qualified
Child Psychiatric and not the Child Psychologist.   The learned
Advocate for the petitioner further submitted a list of expert Child
Psychologists and contended that the learned Judge of the Family
Court   ought   to   have   appointed   some   Child   Psychologist   for
psychological evaluation of Ms.Janhavi in order to ascertain why
she is not ready to go with her mother during the period of access.
It   is   further   argued   that   granting   access   for   summer   vacation
without   waiting   for   report   of   the   Child   Psychologist   is   totally
contrary to the interest of the minor female child.
5 The documents tendered by the learned Advocate for
the   petitioner  during   the   arguments   i.e.   Bio­Data   of   Dr.Harish
Shetty and list of Expert Child Psychologists are taken on record.

6 I have also heard the learned Advocate appearing for
the   respondent­mother   of   minor   female   child   Ms.Janhavi.     He
drew my attention to the modified consent terms on record page
167 and contended that this modification in the consent terms was
done on 16th February 2017.  The learned Advocate argued that if
really Ms.Janhavi was physically injured by her mother on 28th
January 2017, then nothing prevented the petitioner­father from
agitating   this   grievance,   particularly   when   consent   terms   were
modified on 16th  February 2017.   The learned Advocate further
argued that as alleged by the petitioner­father of Ms.Janhavi one
of the incident of physical torture to Ms.Janhavi took place in
presence of the Marriage Counselor attached to the Family Court.
However,   the   petitioner­father   has   not   placed   on   record   any
evidence to demonstrate that such incident took place within the
premises of the Family Court.  Record of that event, if any, made
by the Marriage Counselor is not placed on record, nor an affidavit
of the Marriage Counselor is produced by the petitioner­father.  It
is further argued on behalf of the respondent­mother that on 28th
January 2017 and 18th February 2017 or immediately prior to that
Ms.Janhavi was not in custody of the respondent­mother.  As such,
false allegations are made with ulterior motive to the effect that
Ms.Janhavi was traumatized by her own mother.   It is further
argued by the learned Advocate appearing for the respondentmother
that access to Ms.Janhavi by her mother was regularly
given since pendency of legal proceedings and at no point of time,

any complaint of ill­treatment to Ms.Janhavi by her mother was
made.  No adverse report was ever placed on record.  It is further
argued that the petitioner had, in fact, subjected Ms.Janhavi for
psychological evaluation which prompted her mother to move an
application and accordingly, in the impugned order it is observed
that an undertaking was given by the father that he will not make
his daughter to undergo psychological evaluation.  With this, the
learned  Advocate  for the  respondent  argued  that  as  access  by
mother to Ms.Janhavi was a regular phenomenon, there  is  no
question of grant of ad­interim stay to the impugned order, so far
as access by him to minor female child is concerned.
7 I have carefully considered the rival submissions and
also perused the record made available.  
8 It is well settled that welfare of minor is paramount
consideration for deciding even a temporary custody of  a minor.
Minors cannot be treated as chattel for claiming custody.  Powers
to grant access, visitation right or custody of a minor are not to be
exercised in the interest of parents, but in the interest and welfare
of a minor child.  While handing over custody of a minor child, the
Court is required to keep in mind that health, safety and overall
welfare of the child will properly taken care of by the parent to
whom the custody or access is being given.  What will be for the
welfare of the minor will depend upon the facts and circumstances

of   each   particular   case.     In   the   case   in   hand,   Miss.Janhavi   is
reported  to  be   just  6  ½ years   old   and  she  is  undisputedly   in
custody of her father­petitioner since her birth.  Allegations are to
the effect that she is being physically hurt and traumatized by her
mother­respondent.  According to her father, she is not willing to
join   company   of   her   mother   for   summer   vacation   access   and,
therefore,   she   needs   to   be   evaluated   psychologically   for
ascertaining reason thereof and till then she may not be given in
custody of her mother­respondent.
9 In the case in hand, medico­legal certificate dated 28th
January   2017,   which   is   a   part   of   record,   shows   that   on   28th
January 2017 upon examination of Ms.Janhavi ­ a minor female
child of six and half years age, the attending Medical Officer had
found that she had suffered multiple bruises apart from tenderness
over her arms, root of nose and back.  At record page 169, there is
an affidavit of the petitioner­father filed before the Family Court,
Mumbai.   Paragraph 7 of that affidavit dated 3rd  March 2017 is
relevant.   It is averred in paragraph 7 of that affidavit by the
petitioner­father that on 28th  January 2017 at about 11.45 a.m.,
the mother started pulling Janhavi, who was holding him tightly
by the shirt, but the mother could not pull Ms.Janhavi away.  It is
averred that Ms.Janhavi started crying loudly and because of force
applied, shirt of the petitioner­father was torn.  In paragraph 7 of
the   affidavit,   it   is   further   averred   that   the   petitioner  tried   for

almost   20   minutes   to   convince   Ms.Janhavi   to   sit   with   the
respondent­mother.  However she refused to comply that request.
This,  prima   faice,  indicates   the   serious   trauma   undergone   by
Miss.Janhavi,   when   she   was   being   given   in   custody   of   the
respondent­mother.     She   was   ultimately   hurt   physically   in   the
incident of that date.
10 At   record   page   180,   there   is   another   medico­legal
certificate dated 18th  February 2017 in respect of minor female
child   Ms.Janhavi.     This   certificate   shows   that   Ms.Janhavi   was
found   to   be   physically   injured   at   the   time   of   her   medical
examination on that day.  She seems to have suffered contusions.
11 At record page 182 there is an affidavit, which was
filed by the petitioner­father before the trial Court and paragraphs
14,15 and 16 of that affidavit are relevant.  Perusal of those shows
that on 18th February 2017, Ms.Janhavi returned to the petitionerfather
from her mother on completion of access.   The petitioner
averred in that affidavit that at that point of time, Ms.Janhavi told
him that she do not want to go for access to her mother and
pulling her by her mother is hurting her.  It is further averred by
the petitioner­father in that affidavit that on the next day, while
giving head massage to her daughter, his daughter told him that
her   mother   is   hitting   her   or   pinching   her   and,   therefore,   she
became scared.   Pleadings in that paragraph 16 further reflects

forcible   tutoring   to   Ms.Janhavi   by   her   mother   against   the
petitioner­father.
12 On these pleadings and material on record, it is seen
from the impugned order passed by the learned Family Court that
the Family Court has accepted the request of the petitioner­father
to get his daughter Ms.Janhavi evaluated by the Child Psychologist
by securing the services of the Child Psychologist for that purpose.
It was contention of the father before the Family Court that his
minor daughter is traumatized and hurt by the respondent­mother
and, therefore, orders granting access of Ms.Janhavi to her be
recalled.     According   to   the   father,   his   minor  daughter   is   very
scared and apprehensive to join company of her mother.
13 Accepting the request and contentions of the father of
Ms.Janhavi,   the   learned   Judge   of   the   Family   Court   by   the
impugned   order   was   pleased   to   appoint   Dr.Harish   Shetty   by
describing him as 'Child Psychologist'.  The Bio­Data of Dr.Harish
Shetty placed on record today by the petitioner­father shows that
Dr.Harish   Shetty   is   MD   in   Psychiatry   and   he   is   'Psychiatrist'
practising in Mumbai.  Perusal of the impugned order shows that
the   learned   Judge   of   the   Family   Court   has   not   enquired   or
examined   whether   Dr.Harish   Shetty   is   a   Psychologist   and
particularly   a   Child   Psychologist.     Without   undertaking   this
exercise, he came to be appointed for evaluating psychology of

Ms.Janhavi – a female child of six and half years of age.   Prima
facie, Dr.Harish Shetty appears to be a qualified psychiatrist and
not a Child Psychologist.
14 Two medico­legal certificates on record,  prima facie,
shows that Ms.Janhavi has suffered child abuse which, according
to her father, is caused by her mother.  Resistance of Ms.Janhavi
to join company of her mother, as pleaded by the petitioner­father
has occasioned the learned Judge of the Family Court to deem it
necessary   to   appoint   a   Psychologist   for   her   psychological
evaluation.     However,   instead   of   appointing   an   expert   Child
Psychologist, Dr.Harish Shetty, a practising Psychiatrist has been
appointed   by   the   learned   Judge   of   the   Family   Court   for   this
purpose.  At this juncture, it needs to be noted that children facing
several   emotional   problems   such   as   depression,   anxiety,   child
abuse, sexuality, etc. requires necessary care and help from a Child
Psychologist, who spend time assessing the depth of such problem
by using his skills and carving out solutions for such problems.  A
Psychologist is an expert in the study of human behaviour.   A
Child Psychologist specializes in undertaking the though process
and actions of children and interpreting them to guide appropriate
mental health treatment.  Clinical Child Psychologist focus on the
diagnosis   and   treatment   of   mental   disorder   ranging   from
depression to schizophrenia by interviewing patient, conducting
tests, etc.  In case of substance abuses, a Child Psychologist devises

a   treatment   plan   and   may   implement   behaviour   modification
program.     Counseling   Child   Psychologist   takes   a   behavioral
approach to emotional problems of children.   Psychologist treats
emotional   and   mental   suffering   in   patient   with   behavioral
intervention.   As agaisnt this, a Psychiatrist is a trained medical
Doctor and he take care of medication management of a patient as
a cause of treatment by prescribing medicines.   In the case in
hand, what is required is report from a Child Psychologist  on
evaluating behaviour of Ms.Janhavi to analysis her conduct in her
resistance and refusal to join company of her mother­respondent.
However, it appears that inadvertently though the learned Judge
of the Family Court accepted the contention of the petitionerfather
in this regard, has erred in appointing a 'Psychiatrist' in
doing the work as 'Child Psychologist'.
15 During course of arguments, it is ascertained from the
learned Advocates appearing for both parties that Ms.Janhavi is
taking education in IInd Standard in a school at Mumbai.   This
distance can be traveled within a time of about half an hour from
the   house   of   the   respondent­mother   as   stated   by   her   learned
Advocate.   The access given by the learned Judge of the Family
Court to the mother is from 29th May 2017 to 3rd June 2017.  A
statement   is   made   at   bar   by   the   learned   Advocate   for   the
petitioner­father that in the event nothing  adverse is found  in
psychological evaluation of Ms.Janhavi by the competent Child
Psychologist, the petitioner­father will give compensatory access to

respondent­mother in respect of this period.   The statement so
made is accepted.   Thus, in future, if nothing adverse is found,
Miss Janhavi can be given in temporary custody of her mother
even after reopening of the school.
16 The net result of foregoing discussions goes to show
that Ms.Janhavi was found to be hurt and injured on 28th January
2017 and 18th February 2017 when her medical examination was
done by the competent Medical Officer.   It is averment of her
father   that   the   respondent­mother   is   the   cause   behind   those
wounds.  There is duly sworn testimony to this effect on record.
As against this, it is the contention of the respondent­mother that
Ms.Janhavi was not in her custody on those two dates and she has
not wounded Ms.Janhavi.  Be that as it may, but the case in hand
appears   to   be   a   clear   case   of   a   child   abuse.     I   have   already
mentioned   that   welfare   of   a   child   is   paramount   consideration
while deciding the issue regarding the custody of a minor child.  In
the case in hand, Ms.Janhavi is seen to have been traumatized and
physically injured not once but on two occasions in the process of
giving access.   Report of her psychological evaluation done by a
competent disinterested Child Psychologist will give some clue, as
to who was the author of wounds suffered by Ms.Janhavi and the
reason of her apprehension and reluctance to join company of her
mother.  Ms.Janhavi, since her birth, is undoubtedly in custody of
her father­the petitioner.   As such, looking to the aspect of her

safety and wellbeing, she needs to be continued in his custody till
her psychological evaluation by the expert Child Psychologist for
ascertaining her behavioral issues and issue of a child abuse.  The
respondent­mother is objecting appointment of Child Psychologists
from the list given by the petitioner­father.  Her learned Advocate
states that by tomorrow, he will submit another list of expert Child
Psychologists for consideration of this Court.   Keeping in mind
welfare of minor female child Ms.Janhavi, I proceed to pass the
following order as an interim measure :
(i) Until   further   order,   impugned   order   dated   25th  April
2017 passed by the learned Family Court, Mumbai so far
as   relates   to   granting   access   of   Ms.Janhavi   to   the
respondent/mother for the period from 29th May 2017 to
3
rd June 2017 is stayed.
(ii) Stand   over   to   30th  May   2017   in   order   to   enable   the
respondent to submit list of expert Child Psychologists in
order to enable this Court to determine and nominate the
expert Child Psychologist for evaluating psychology of
Ms.Janhavi.
  
(A.M.BADAR J.)

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