R. Banumathi, J.@mdashBeing aggrieved by the modification of the earlier order dated 22.12.2010 in respect of visitation rights allowed to the Respondent-father, Appellant-mother of the children has come forward with this appeal.
2. Respondent filed Petition in O.P. No. 144 of 2008 to appoint him as guardian of their minor children Anamika (Date of Birth 25.02.1999) and Riyaan (Date of Birth 17.12.2003). In the Petition, number of interim orders came to be passed which may not be of much relevance for the limited scope of the question involved in this appeal. Suffice it to note that in the earlier order in O.S.A. No. 268 of 2008 dated 07.8.2008, the Division Bench ordered that the main O.P. itself be disposed of within a period of three months from the date of the order and directed the parties to co-operate for early disposal of the matter.
3. When the children were located in Hyderabad, on application filed by the Respondent-father, by an order dated 11.03.2010, Justice V. Ramasubramanian, J. interalia passed the order permitting the Respondent-father to take interim custody on the evening of Friday preceding the second Saturday of a month and bring them to Chennai and hand over the custody of the children on the following Sunday before 8.00 p.m. at Hyderabad.
4. Thereafter trial commenced on 05.02.2010. Proof affidavit of PW1 filed and 38 documents were marked on her side. Then the case was adjourned to 12.02.2010 for PW1''s cross examination. In the mean while, Appellant-mother and the minor children were re-located in Pond cherry. Respondent-father filed various applications. By the order dated 22.10.2010, Justice V. Ramasubramanian,J. passed an order to the effect that in addition to the second weekend, Respondent-father should have similar custody of the children on the fourth weekend of every month also and the relevant portion of the said order dated 22.12.2010 reads as under:
(c) The Petitioner-father shall take the children on the evening of the Friday preceding the Second Saturday of a month and after having company of the children on Saturday and Sunday, hand over the children at the residence of the Respondent-mother before 6.00 P.M., on the following Sunday. The same arrangement shall also happen on the Friday preceding the fourth Saturday of the month so that the Petitioner has interim custody for the second weekend and the fourth weekend of every month.
5. Even though trial commenced in February 2010, there was not much progress in the trial. Even when the trial is pending, Respondent-father again filed other set of applications to modify the order dated 11.03.2010 and also the order dated 22.10.2010 and the applications were disposed of by the impugned order dated 24.6.2011 giving Respondent-father custody of children on every alternative weekends and other alternative weekends to have visitation rights. The impugned order reads as under:
(a) the father shall take custody of children on every alternative Saturday morning and bring them to Chennai and drop them back on the evening of the next day, viz., the following Sunday. On the other alternative weekend, the father shall have the company of the children in Pond cherry itself; and
(b) all the vacations, such as Dasara, Christmas and Summer, whenever children have all these vacations, shall be shared equally between both the parties.
The effect of the above order is that Respondent-father shall have custody/visitation rights on all weekends. Being aggrieved by the grant of visitation rights to Respondent-father on all weekends, Appellant-mother has come forward with this appeal.
6. When the matter was taken up on 22.07.2011, parties were present. We have also enquired the children in the Chamber. We have noticed that daughter-Anamika, aged 12 years is not willing to go with the Respondent-father even for one day. We have also enquired the boy-Riyaan, aged 7 years. Boy-Riyaan has not expressed anything and remained quiet. In the above said circumstances, we felt that it would be appropriate to hear the arguments in the OSA itself and dispose of the matter on merits.
7. Mr. R.Thiagarajan, learned Counsel for Appellant contended that by granting the visitation rights of alternative Saturday and Sunday at Pondicherry, the Appellant-mother is literally deprived of the company of the children during weekends which resulted in manifest miscarriage of justice. It was further submitted that the main O.P. No. 144 of 2008 is in part-heard stage and posted on 01.09.2011 for further evidence while so, learned Judge ought not to have passed the impugned order on 24.6.2011. It was submitted that the educational needs of the children require them to be in Pondicherry and that they are not in a position to spend the time for their home work and other extracurricular activities which the learned Judge failed to keep in view.
8. Taking us through the various Petitions and the orders, Mr. P.V.Balasubramanian, learned Counsel appearing for Respondent-father contended that even though number of interim orders came to be passed, the Court orders are not properly complied with and every time only by the order of the Court, Respondent-father could exercise his rights of interim custody/visitation rights. It was further submitted that the order of the Court cannot so allowed to be flouted and having regard to the conduct of the Appellant-mother, the learned Judge has rightly modified the order and the impugned order does not suffer from any infirmity.
9. Now the children are re-located in Pondicherry and the daughter is studying in 8th standard and son is studying in 3rd standard in "The Study School", Pondicherry. By the order dated 22.12.2010, interim custody of minor children was given to the Respondent-father for two weekends which in our considered view would be sufficient. Since the children are studying in school, for doing their home work and for their other extracurricular activities and also to be with their mother during the weekends, it would be appropriate that Respondent-father to have interim custody only for two weeks. After the order came to be passed on 22.12.2010, there was No. change of circumstance to modify the earlier dated 22.12.2010. In our considered view, four weekends are to be shared between the father and mother. We find that the earlier order dated 22.12.2010 appears to be more reasonable. Learned Judge was not right in giving interim custody/visitation rights of the minor children to the Respondent-father for all four weekends and the impugned order is liable to be interfered with. Since trial is pending, both parties are directed to co-operate with the earlier disposal of main O.P. rather than coming up with multitude of applications.
10. In the result, the impugned order dated 24.6.2011 is set aside and this appeal is allowed. Earlier order of the learned single Judge dated 22.12.2010 shall continue to govern the parties as to the interim custody of the children/sharing of holidays. Both parties are directed to co-operate with the trial Court for early disposal of main O.P. No. 144 of 2008. No. costs.
