V. Kameswar Rao, J
CM APPLs. 37994/2022 & 38169/2022
1. By this order, I shall decide the two applications filed by the respondent Veer Singh and the petitioner Kinri Dhir being CM No. 37994/2022 & CM.
No. 38169/2022 respectively.
2. Before I deal with the submissions in the aforesaid applications, I intend to deal with application CM. 38585/2022 filed by the petitioner seeking
rectification of an inadvertent typographical error in the affidavit accompanying CM. No. 38169/2022.
3. The rectification application is allowed, in terms of paragraphs 3 and 4 therein and the errors in the affidavit are deemed to have been rectified.
4. Accordingly, CM. No. 38585/2022 stands disposed of.
CM. No. 37994/2022
5. This application has been filed by the respondent, Veer Singh, with the following prayers:
“a. Allow the present Application and thereby modify the Judgment and Final Order dated 24th March 2022 passed by this Hon’ble
Court in CMM No. 1053 of 2021 in view of Order dated 7th June 2022 passed by the Hon’ble Supreme Court thereby allowing the
Applicant / Respondent unrestricted and unsupervised visitation with the minor child; and / or
b. Any other orders or directions that this Hon’ble Court deems fit in the facts and circumstances of the present case.â€
6. It is the case of the respondent that he is seeking modification of the final judgment / order dated March 24, 2022 in view of certain changes in the
circumstances and in furtherance to the liberty granted to him by the Supreme Court vide its order dated June 07, 2022 passed in SLP bearing Civil
No. 10149/2022.
7. It is stated that the Supreme Court in its order dated June 7, 2022 has partially modified the said order and held that the respondent shall have
visitation as directed by this Court only till the time the petitioner is in occupation of the premises being 2nd Floor, C-99, Defence Colony, New Delhi
while giving liberty to the respondent to seek appropriate orders in the event of the petitioner vacating the aforesaid accommodation.
8. It is stated that the petitioner along with the minor child has moved out of the premises being 2nd Floor C-99, Defence Colony, New Delhi â€
110024 w.e.f July 31, 2022 and shifted to another premises being Ground Floor, F-4/6, Vasant Vihar, New Delhi w.e.f August 1, 2022 pursuant to the
order dated July 26, 2022 passed by the Division Bench of this Court in MAT. APP. (FC) No. 2/22.
9. It is the submission of Mr. Prabhjit Jauhar, learned counsel appearing for the respondent that the respondent has been incapacitated from
undertaking visitation of the minor child for the last nine months because of the extremely hostile conduct of the petitioner towards the respondent. In
this regard, he stated that when the petitioner and the respondent staying together, the respondent had always been at the receiving end of the
petitioner’s harsh and aggressive behavior including verbal as well as physical confrontation. The petitioner deliberately picked up trivial issues,
wherein every conversation of the petitioner started turning abusive and violent resulting in the respondent limiting his conversation with the petitioner
and requested her to put her thoughts regarding the well-being of the child on e-mails / messages. She had also threatened the respondent to the extent
of implicating him in false cases. It is because of this behavior that the respondent moved out of the premises being 4th Floor to the third floor of the
same building i.e., C-99, Defence Colony, New Delhi, in the month of March, 2021.
10. He used to spend most of the time with the child at the fourth floor. However, the respondent used to come down to the third floor after the child
has slept. The fact that the respondent was consistently victim of the aggression of the petitioner can also be substantiated by the CCTV footages,
when on one such occasion in August, 2021, the petitioner can be seen throwing all the belongings of the respondent. Subsequently, the respondent
shifted to second floor of the premises being C-99, Defence Colony, New Delhi.
11. He stated, the respondent was eventually forced to completely move out of the premises being C-99, Defence Colony after hostile and tormenting
supervised visitation that occasioned on December 18, 2021,when the petitioner through her counsel kept calling the Court Commissioner to be more
stringent with the respondent. Almost 10 calls were made by the petitioner’s counsel to make the entire visitation a hostile and distressing
experience for the respondent and the minor child.
12. It is the submission of Mr. Jauhar that the petitioner left no stone unturned to alienate and ostracise the respondent from the life of the minor child.
The respondent has been the primary caregiver to the minor child since his birth and has been reduced to a mere spectator, in fact an outsider to the
minor child.
13. The petitioner has got the minor child enrolled in a school near Vasant Vihar, particulars of which are not known to the respondent since the
petitioner neither informed nor involved the respondent in the process.
14. The petitioner leaves the minor child, who is 3 years of age alone at the school with unknown people while keep creating hindrances and obstacles
in the respondent meeting his own son. He lays stress on the fact that the respondent is an extremely committed and devoted father with the intent not
to expose the child to any outsider. In fact, he himself was involved in every minute, day to day requirement of the child including undertaking all the
responsibilities of a primary caregiver â€" be it vaccination, eating schedules, doctor visits, diaper changing, washing, cleaning, supervision of nurses,
purchasing baby items, sanitisation etc. Till the child was about one year old, the respondent was personally preparing all meals for the child to ensure
proper and wholesome supply of nutrition and continued to guide the cooks thereafter. He stated that the respondent exercised his visitation rights in
terms of the order dated December 18, 2021 in the presence of the Court appointed Commissioner. Having met each other after almost a month, the
child and the respondent were overwhelmed with emotions and the child did not even leave the embrace of the respondent for almost an hour which
only goes to show the close affinity between the child and the father. The child is also attached to his cousins and was also seen joyous upon meeting
them. However the constant presence of an unknown person around, was emotionally very disturbing for the child. He stated that the very purpose of
visitation being an opportunity for the child and the father to spend some quality time with each other and essentially to strengthen the pious bond
between the two, was entirely defeated as the child being only 2 and ½ years old was confused to be in a distressing environment. The above
instances were having serious impact on the mental and emotional well-being of the child throughout the visitation which left the child in an extremely
emotional and vulnerable state so much so that while the respondent was handing over the child back to the nanny at 7:00 pm, the child did not want to
let go of the respondent and even said ‘papa k sath jana hai’.
15. Mr. Jauhar submitted that the petitioner with the sole intent to mislead and only in order to suit her convenience, has been constantly changing her
stand regarding the role of the respondent before different forums. While claiming maintenance under the Protection of Women from Domestic
Violence Act, 2005, the petitioner calling herself to be the legally wedded wife of the respondent, which at the outset is false, has claimed numerous
reliefs including enormous sums towards maintenance. In fact, the Family Court had even given prima facie findings regarding her intent to extort and
blackmail.
16. The petitioner has been constantly approbating and reprobating her stand before the Courts in order to deprive the respondent of the love and
affection of his child and further extort high amounts of maintenance from him.
17. At present the respondent is paying almost ?5.75 Lacs towards accommodation and maintenance and the petitioner has set forth to extract monies
from the respondent while systematically alienating the applicant / respondent from his son’s life.
18. According to Mr. Jauhar, considering the hostility between the parties, visitation of the child at the subject premises is not conducive to the welfare
and interest of the child, which is to be given paramount importance. He stated that the petitioner and the respondent have not stayed under the same
roof since March, 2021 which formed the basis of the application seeking uninterrupted visitation preferred on behalf of the respondent before the
Family Court, which culminated in the Order dated October 28, 2021. He stated that neither the essence nor the intent of the Order dated October 28,
2021 is that the visitation would be contingent upon the respondent staying at the subject premises owing to the growing hostility and indifference
between the parties. He stated even in Amyra Dwivedi v. Abhinav Dwivedi & Anr. (2021) 4 SCC 698 where the parties were living apart from each
other, the Supreme Court had granted visitation without putting condition on the mother (in that case) staying at a particular residence.
19. He stated that for creating an environment of love and normalcy for the child, it is important that the respondent spend quality time with the child
regularly in a place where both the child and the father feel comfortable and secure. Furthermore the Judgment of the Supreme Court in Amyra
Dwivedi (supra) stressed on the importance of atmosphere in which the visitation is agreed between the parent and child. He stated it is no more res-
integra that all custody orders are interlocutory in nature and can be modified at any stage. In support of his submission, he has relied upon Rosy Jacob
vs. Jacob A. Chakramakkal reported as (1973) 1 SCC 840 and Vikram Vir Vohra vs. Shalini Bhalla, reported as (2010) 4 SCC 409.
20. It was also the submission of Mr. Jauhar that a complaint has been filed with the police against the respondent and other family members raising
serious allegations under different Sections of IPC and in such circumstances, the condition that the respondent needs to live in the place where the
petitioner is residing for visitation cannot be conducive as the very visit of the petitioner to the property may lead to further allegations against him,
defeating the very purpose for which the visitation has been allowed.
21. He also stated, in terms of order of March 24, 2022, this Court had granted visitation on alternate days for a total period of 12 Hrs. The said order
can be modified reducing the number of days, but maintaining the same hours so as to ensure that the interest of the child is protected and the
respondent has a purposeful visitation, i.e., the right to enjoy the company of his minor son without any hindrance.
CM No. 38169/2022
22. The application has been filed with the following prayers:
“A. Modify the Order dated 24.03.2022 to the extent that the Respondent is not entitled to any physical visitation / access to the minor
child; or
B. In the alternative, modify the Order dated 24.03.2022 to the extent that the Respondent be directed to avail physical visitation, if any, to
the minor child in the same property in Vasant Vihar i.e., F-4/6, Ground Floor, Vasant Vihar, where the Applicant is residing with the minor
child w.e.f. 01.08.2022 or in the park opposite the said residence; and / or
C. Pass such other and further Order(s) which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case
and to meet the ends of justice.â€
23. The above prayers reveal that the petitioner is seeking modification of order dated March 24, 2022 to the extent respondent is not entitled to any
physical visitation / access to the minor child or in the alternative seeking an order that the respondent can avail physical visitation, if any to the minor
child in the same property where the petitioner is residing with the minor child, that is Vasant Vihar property.
24. It is the case of the petitioner and so submitted by her counsel Ms. Shivani Luthra Lohiya, Advocate, that the petitioner has filed the present
application seeking modification of the Judgment / Order dated March 24, 2022 which was passed granting physical visitation to the respondent subject
to condition that the respondent meet the child while residing at C-99 Defence Colony, New Delhi. The said Order was specifically intended at
ensuring that the minor child, who is of tender age, is not without his biological mother in close proximity at any point of time. The said condition of
residence has been upheld by the Supreme Court vide order dated April 18, 2022 and this Court vide order dated May 4, 2022 and again by the
Supreme Court on June 7, 2022 despite repeated attempts of the respondent to mislead the Courts. She stated that the respondent has not voluntarily
availed either the physical or virtual visitation permitted by the Court even on a single occasion owing to his complete indifference towards the minor
child and that the minor child is being solely brought up by the petitioner, a devoted and doting mother. According to her, the present application is
necessitated owing to the perturbing manner in which the respondent shrewdly and connivingly ousted the petitioner and minor child from the property
at C-99, Defence Colony to seek variation of the conditional visitation granted to the respondent after his prayer for variation of the condition was
dismissed by every forum including the Supreme Court on two occasions.
25. According to Ms. Lohiya, the residence at C-99, Defence Colony constitutes an essential condition for the visitation granted to the respondent in
each and every order passed by the Courts. It is further submitted that admittedly, the order relating to visitation including the order dated October 28,
2021 passed by the learned Family Court has been undisputedly and unequivocally premised and conditioned upon the parties residing at the same
residence at C-99 Defence Colony and this Court did not deem it fit to permit the child to be taken out by the respondent.
26. She stated that the respondent is residing in Five-Star Hotel in Gurgaon. He has been filing false affidavits before the Courts, with a view that
residence at C-99, Defence Colony is grossly below the standard of luxury and not as per his whims, and as such, the respondent has vowed to get the
said condition modified by using devious and unprincipled techniques and resorting to lies and deceit. He did not bother to exercise the limited visitation
granted to him as per orders of the Courts on even a single occasion and instead, repeatedly approached the Court making deceptive and misleading
submissions to seek variation of the conditional visitation. He made blatantly false statements regarding his address before each forum. He went on to
changing his residence on eight separate occasions in a span of few months as is borne out from his affidavits.
27. It was her submission that since late 2021, the respondent has been attempting to oust the petitioner and the minor child with the aid of his friends,
the owners of C-99, Defence Colony. It was finally in July, 2022, the petitioner and the minor child were illegally and forcibly thrown out of the said
property by the respondent with the aid of his friends, i.e., the owners.
28. For approximately 5-6 days in July 2022, the respondent and the owners connivingly disconnected all the services and basic necessities solely to
the 2nd floor of C-99, Defence Colony including electricity, gas and water including drinking water. In such a manner, the respondent and the owners
made the petitioner, who is a doting mother to her three year old child and is unable to see him in discomfort, to vacate the premises at C-99, Defence
Colony.
29. The petitioner and the minor child were forced to take up accommodation outside since the minor son was in immense discomfort and did not have
any water to drink, food to eat and even fell unwell owing to extreme heat and humidity, which was repeatedly informed to the respondent by the
petitioner. The respondent without any concern for the minor child, refused to even communicate with the petitioner directly, let alone help the
distressed minor child and instead kept intimidating and harassing the petitioner and the minor child. The respondent’s indifferent conduct smacks
of his apathy and his complete lack of concern towards the detrimental effect of his cruel actions on the minor child’s health and wellbeing and
further demonstrates his unfitness to be around the minor child. Thus, in this manner, the respondent rendered the petitioner and her son without roof
over their head for many days. Presently, the petitioner and the minor child are residing at F-4/6, Ground Floor, Vasant Vihar, New Delhi â€" 110057
with the permission of this Court granted on July 26, 2022. She laid stress on the fact that respondent had absolutely no affinity towards the minor child
whatsoever and has consistently failed to exercise his visitation rights. He has not met the minor child on a single occasion since December 18, 2021,
which clearly shows that he has no intention to interact and spend time with the minor child. This unhealthy obsession with absolute ownership and
control of the child is demonstrated from the respondent’s written proposal submitted before this Court offering ?5 crore in exchange for the child.
30. She also stated that because of the deliberately spiteful conduct of the respondent, the petitioner has been forced to regularly borrow sums from
her family and friends to ensure that the minor child’s education and upbringing is not compromised in any manner and that the petitioner is able to
make ends meet. The respondent is only providing a paltry amount of maintenance of ?2 Lakhs as maintenance to her and her child’s sustenance,
which is inadequate to meet even the growing child’s day-to-day expenditure on his play school fees, clothes, extra-curricular classes, toys, books,
musical instruments, activities etc. Additionally he is paying for the rent of an apartment (excluding any amenities, bills, facilities) and is paying ?1
Lakh for three staff members, one driver and all groceries and household expenses, which is wholly inadequate.
31. According to her, the respondent is merely a putative father on account of his own stand that there is no marriage or relationship in the nature of
marriage between the parties and is disentitled to meet the minor child and is unfit to be around the minor child.
32. In the end she submitted that the respondent’s vindictive acts have wreaked havoc in the life of the petitioner and her child, who are
constrained to repeatedly approach this Court for their smallest requirements owing to the mischief, spite and ego of the respondent. The respondent
having no concern for the minor child, let alone the petitioner, is not entitled to any visitation right at all.
33. Thus it is her plea that the respondent not be permitted to meet the minor child as the same is contrary to minor child’s welfare and gravely
damaging to the minor child’s well-being. She also submitted that if such a plea cannot be granted, then he be permitted to meet the minor child in
one room of the same property where the minor child is presently residing i.e., F-4/6, Ground Floor, Vasant Vihar or in the park located opposite the
residence.
34. Having heard the learned counsel for the parties and perused the record, at the outset I may state that the application being CM No. 37994/2022
has been filed by the respondent in terms of the order passed by the Supreme Court dated June 07, 2022, reproduced hereunder, whereby the
Supreme Court has, stated that for any reason, the respondent i.e., the petitioner herein is required to vacate the property at C-99, Defence Colony,
New Delhi, either party may move High Court for appropriate modification, which may be considered by this Court.
“Having heard the learned counsel for the respective parties, we order that the petitioner - Veer Singh shall have visitation rights to visit
and meet his child at C-99, Defence Colony, New Delhi as ordered earlier till the respondent â€" Kinri Dhir is in occupation of the said
property - C-99, Defence Colony, New Delhi. However, it is directed that both the parties to see to it that no untoward incident happens
while enjoying the petitioner his visitation rights at C-99, Defence Colony, New Delhi. It is further ordered that, if for any reason, the
respondent is required to vacate the property â€" C-99, Defence Colony, New Delhi, in that case, either party to move the High Court for
appropriate modification which may be considered by the High Court and the High Court to pass appropriate orders looking to the
exigency and looking to the larger interest of the child. With this, the present special leave petition stands disposed of. Pending
application(s), if any, also stand disposed of.â€
35. It is accordingly, in terms of the order of the Supreme Court that both the parties have filed the applications, which are being considered by this
Court in terms of this order. It is a fact that the petitioner has changed the place of residence from Defence Colony to Vasant Vihar. While deciding
CM(M), I had, vide order dated March 24, 2022, varied the order of the Trial Court by allowing the visitation rights to the respondent in terms of the
following directions:-
“I. The visitation hours given to the respondent by the Trial Court for 2 hours daily may not be conducive for the child of that tender
age. Appropriate shall be instead of daily, the respondent shall have visitation rights on alternate weekdays i.e., Monday, Wednesday and
Friday on which days he will collect the child at 6 PM and return the child to the petitioner at 8 PM on the same day.
II. On Sunday, the respondent shall collect the child from the petitioner at 11 AM and return the child at 5 PM on the same day.
III. The above visitation shall be subject to the respondent residing in the same property i.e., C-99, Defence Colony.
IV. The respondent shall ensure the safety and well-being of the child; and ensure that necessary COVID-19 protocols are maintained and
the child is not exposed by nonessential outings to public places. This does not preclude the respondent from taking the child to a nearby
park.
V. The respondent shall not take the child out of the territorial limits of the Courts in Delhi.
VI. The respondent shall have unsupervised visitation rights to the child, i.e., the respondent would not be supervised by a nanny, Local
Commissioner, etc. However, during visitations, liberty is with the respondent to have his family members present.
VII. The respondent shall also be at liberty to speak / interact with the child through video call / audio call once a day on Tuesdays,
Thursdays and Saturdays, in the evenings between 6 PM to 8 PM for not more than 10 minutes.â€
36. The grievance of the respondent is primarily with regard to condition at Sl. No. (III), which inter-alia stipulates that the visitation granted to the
respondent shall be subject to the respondent residing in the same property i.e.C-99, Defence Colony. In fact, the petitioner had approached this Court
earlier also by way of a Review Petition being 119/2022, which was dismissed by this Court on May 04, 2022.
37. Most of the submissions of Mr. Jauhar, as noted above, are similar to the one made while arguing the CM(M). The prime submissions made by
Mr. Jauhar in support of this application can be summed up as below:-
(i) That the respondent has changed her residence from Defence Colony to Vasant Vihar;
(ii) Purposeful visitation rights can be exercised if the same is unsupervised;
(iii) The visitation granted by the Court in the order dated March 24, 2022 be reduced to two or three days but commensurating with the number of
hours granted;
(iv) There cannot be supervised visitation rights also for the reason that the petitioner has filed a complaint against the respondent with the police
authorities making serious allegations including an allegation under Section 379 of IPC.
38. In other words, it is the submission of Mr.Jauhar, in the background of a serious complaint made by the petitioner, there is a strong apprehension
that if the visitation right is granted to the petitioner at the Vasant Vihar property, the same shall not be conducive and peaceful, which shall affect the
well being of the child as well.
39. The plea of Ms. Lohia is primarily that the respondent despite having been granted visitation right at C-99, Defence Colony, both physical and
virtual, has not availed the same, which shows that the respondent has no love and affection for the child but only intention to harass the petitioner by
filing petitions and seeking variation of the conditional visitation. She had also stated that the petitioner was thrown out of C-99, Defence Colony by the
respondent with the aid of his friends i.e., the owners, of the property inasmuch as all basic necessities to the second floor of C-99, Defence Colony
like electricity, gas, and water including drinking water were disconnected resulting in much discomfort to the minor child.
40. The plea of Ms. Lohiya is primarily that the respondent has purposely, with the aid of the owners of C-99, Defence Colony, New Delhi ousted the
petitioner and the minor child from the property by creating conditions which were not conducive to the minor child. In this regard, I may refer to the
order dated July 26, 2022 of the Division Bench of this Court in MAT. APP. (F.C.) 2/22, wherein this Court has stated as under:
“*** *** ***
In the meantime, Mr. Veer Singh, the respondent is directed to, in the circumstances attendant, provide a service apartment of the same
specification, approximately as the current accommodation situated at 4th Floor, C-99, Defense Colony, New Delhi-110024, to Ms. Kinri
Dhir, the appellant.
In addition, Mr. Veer Singh, shall continue to abide by all other terms, issued by the learned Family Court, in the impugned order dated
09.11.2021, as modified from time to time by the directions issued by this Court in the appeal, as well as, the contempt proceedings initiated
on behalf of Ms. Kinri Dhir, the appellant, without demur.
In addition, Mr. Veer Singh, shall ensure that the shifting of Ms. Kinri Dhir, the appellant, as well as, her minor son, namely, Shakya Simha,
is facilitated and supervised by him, so as to ensure that, no disruption or difficulty is experienced by Ms. Kinri Dhir, the appellant and her
minor son.
No further directions are necessary at this point of time since the primary issue flagged in the present application relates to the vacation of
4th Floor, C-99, Defense Colony, New Delhi-110024, owing to the refusal of the landlord to extend the appellant’s stay therein and the
circumstance that, they cannot be left without a suitable alternative accommodation.
Learned counsel appearing on behalf of Mr. Veer Singh, the respondent states that the directions issued hereinabove, shall be complied in
letter and spirit and without demur.
*** *** ***â€
41. So it shows that the shifting of the residence from the Defence Colony to Vasant Vihar is pursuant to the orders passed by this Court.
42. She has also stated that the respondent be denied the visitation right. Alternatively, if the respondent is so keen on visitation, he can have it at the
Vasant Vihar property only i.e. in the property being occupied by the petitioner. At the outset, I may state that the right of the respondent for visitation
qua the minor child cannot be contested. In fact, I have so held in the judgment dated March 24, 2022. Concedingly, the petitioner herein has not
challenged the finding in paragraph 30 of the judgment which reads as under:-
“30. I must state that the said issue must not detain this Court from deciding the issue, which falls for consideration in this petition that is,
the visitation rights granted in favour of respondent. It cannot be disputed that the respondent, being a putative father shall be entitled to
visitation rights. While determining and granting such rights, more so when the child is of less than three years of age, surely his well-being
/ welfare is of paramount importance. At the same time, the minor must not be insulated from parental touch [Ref: Ruchi Majoo (supra)] and
influence of the other parent for healthy growth of child and development of his personality.â€
43. Having said that the question is whether the order dated March 24, 2022 is required to be modified in the manner sought for by the parties in their
applications i.e., (i) respondent be given unrestricted and unsupervised visitation of the minor child or; (ii) the respondent be permitted to avail physical
visitation to the minor child in the same property at Vasant Vihar i.e., F-4/6, Ground Floor, Vasant Vihar, New Delhi.
44. I have given my thoughtful consideration in that regard. It is a fact, as seen from the documents filed by the respondent, that a complaint dated
July 11, 2022 has been filed with the ACP, Crime Against Women Cell, South District, Delhi against the respondent and his family members under
various sections of the IPC and Section 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
45. So, for that reason, and in view of the apprehension expressed by Mr. Jauhar, this Court is of the view that such recourse may not be conducive
for the welfare of the child, for the reason that if any untoward incident was to happen, the same shall have an effect on the child, which this Court
shall not allow.
46. One of the pleas of Ms. Lohiya is that despite the respondent having visitation rights, he has not met the minor child on a single occasion since
December 18, 2021, which clearly shows that he has no intention to interact and spend time with the minor child, and as such, he should not be
allowed any visitation rights. The plea is appealing on a first blush, but the fact is that the respondent was allowed supervised visitation under a Local
Commissioner, to which the respondent had an issue as the same is not purposeful and that the judgment dated March 24, 2022 was under challenge
before the Supreme Court in a petition filed by the respondent himself, could possibly be the reasons for the respondent not to avail the visitation.
47. Mr.Jauhar has placed reliance on the case of Nilanjan Bhattacharya v. State of Karnataka & Ors,. 2020 SCC OnLine SC 928, for the limited
submission that the interest and welfare of the child is of paramount importance while granting visitation rights. He has also relied upon the judgment in
the case of Amyra Dwivedi (supra), to contend that that whenever the visitation rights are granted, the same shall be granted in such a way that the
child and the parent who is granted the visitation right can meet in an atmosphere where they can really be like parent and child. Similarly, Mr. Jauhar
has relied upon the judgment of the Bombay High Court in the case of Abhinav Gyan v. State of Maharashta, 2022 SCC OnLine Bom 2958, in support
of his submission that even if a married couple have differences of opinion and there is a marital discord amongst them, they should not create a
situation where the parent, who happens to have physical custody of the minor child uses the custody of such a child as a tool to inflict suffering on the
other parent by depriving the other parent of contact with the minor child. Insofar as the judgments in the cases of Rosy Jacob (supra) and Vikram Vir
Vohra (supra) are concerned, the same were relied upon by Mr. Jauhar for the proposition that all custody orders are interlocutory in nature and can
be modified at any stage. On the other hand, Ms. Lohiya has relied upon the judgment dated September 23, 2021 in the case of Harsha Bawa v.
Deepinder Singh Bawa Mat.App.(F.C.) 253/2019 in support of her submission that the respondent, even if allowed visitation, should only be allowed to
take the child to the park opposite her place of residence at Vasant Vihar.
48. I have seen the judgments relied upon by learned counsel for the parties and considered the submissions made on these applications. There are
two aspects, which have undergone a change after the order dated March 24, 2022 was passed; (1) a change of residence by the petitioner; and (2)
the child has been admitted in a school. Given the change, the question now is as to what directions are to be passed so that the respondent has
visitation rights and the larger interest and welfare of the child is protected.
49. I have been informed during the course of hearing, the minor child has been admitted to a school (probably a play school) which means that the
child would be pre-occupied attending the school during week days. He should have sufficient time for rest, sleep and play for his overall development
/ health. This aspect needs to be given due regard while considering the right of the respondent for visitation.
50. The petitioner having shifted to a different place of residence at Ground Floor, F-4/6, Vasant Vihar, where admittedly she is residing along with the
minor child, direction No.III above has become infructuous.
51. In view of the above discussion, this Court is of the view, direction No. III needs to be deleted and direction Nos. I, II and VII need to be
modified.
52. Accordingly, this Court modifies the order dated March 24, 2022 to enable the respondent to exercise the visitation right qua the minor child in the
following manner:
I. The respondent shall have visitation rights on Mondays, Fridays and Sundays. On Mondays and Fridays he shall collect the child at 6 PM and return
the child to the petitioner at 8 PM on the same day.
II. On Sundays, the respondent shall collect the child from the petitioner at 11 AM and return the child at 6 PM (instead of 5 PM as was in the earlier
order dated March 24, 2022) on the same day.
III. The respondent shall ensure the safety and well-being of the child; and ensure that necessary COVID-19 protocols are maintained and the child is
not exposed by nonessential outings to public places. This does not preclude the respondent from taking the child to a nearby park.
IV. The respondent shall not take the child out of the territorial limits of the Courts in Delhi.
V. The respondent shall have unsupervised visitation rights to the child, i.e., the respondent would not be supervised by a nanny, Local Commissioner,
etc. However, during visitations, liberty is with the respondent to have his family members present.
VI. The respondent shall also be at liberty to speak / interact with the child through video / audio call once a day on Tuesdays, Wednesdays,
Thursdays and Saturdays, in the evenings between 6 PM to 8 PM, for not more than 10 minutes.
53. Since the meeting between the respondent and the child would be taking place after a period of ten months, I am of the view that the child would
need some time to re-develop acquaintance and get comfortable with the respondent, and it may not be ideal for him to be taken away by the
respondent alone at the first instance. For this reason, the initial meetings of the respondent with the child shall take place for a period of 30 minutes,
on Mondays, Fridays and Sundays at 5 PM in a public park or in a mall in Vasant Vihar / Vasant Kunj area. The child shall be taken by the
nanny/maid to the park or mall in Vasant Vihar / Vasant Kunj area, as may be informed by the respondent to the petitioner. The nanny / maid shall not
remain within a visible distance, though she may, from a distance, keep a watch on the child. After 30 minutes, the child shall be taken back by the
nanny/maid to the house at F-4/6, Ground Floor, Vasant Vihar, New Delhi. This cautious direction would be applicable for a period of 15 days from
today, till October 29, 2022. It is only thereafter that the directions given above in paragraph 52 shall come into operation.
54. Accordingly, the order dated March 24, 2022 stands modified to the above extent. The application being CM 37994/2022 is disposed of. The
application being CM No. 38169/2022 filed by the petitioner is closed in view of my above order.
