Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. NO. 192/DV/2022
Shazia V/s. Fahed.
ORDER BELOW APPLICATION AT (Exh.-8)
The respondent has filed the present application for grating
access to his children namely master Fawaz and master Meer. According to
respondents they are law abiding citizens. The applicant is wife of
respondent No.1 and they married on 06/11/2014 and having two sons by
name master Fawaz, who born on 24/11/2016 and master Meer who born
on 27/07/2019. Both son are school going children. It is contended that,
being father of master Fawaz and master Meer respondent No.1 and being
grant mother and grant father respondent No.2 and No.3 have right to
have access of master Fawaz and master Meer.
2. It is contended that, since and prior to marriage the applicant is
suffering from Bipolar-Disorder and said fact is suppressed by the applicant
and married with respondent No.1. It is contended that, the applicant used
to frequently fall ill and her behaviour appeared to be abnormal and
inspite of medication her health issue remained constant. It is contended
that, respondent No.1 provided medical aid to the applicant by showing to
Psychiatrist Doctors. The applicant is suffering from Bipolar-Disorder,
which is serious mental disorder. It is contended that, if the children
allowed to stay with applicant in said mental condition children become
hyper focused. It is contended that, due to illness of applicant family
members have severely affected. The applicant is required to monitor and
observation by Medical Officer. It is contended that, for the well being of
the children frequent visit of respondents are necessary. Respondents will
take care of children. It is contended that, respondent wants to take his
children for Umrah and Haj at Mecca and Madina, Saudi Arabia in the
month of January 2024. If relief sought is not granted then respondents
will suffer irrepairable loss and damages which cannot be compensated in
any terms.
-- 1 of 8 --
~2~
C. C. NO. 192/DV/2022 ORDER BELOW EXH.-8
3. Further, it is contended that, the applicant has filed criminal
application before Hon’ble Bombay High Court in order to prolong the
hearing of application for custody of children in the court of Hon’ble
Family Court, Nasik. Lastly, respondent prayed that application be allowed
and permission be granted to respondents to visit master Fawaz and
master Meer. Respondent No.1 also sought relief that, he may be allowed
to take children to his home town at Nasik during school vacation period
and also sought relief that, he may be permitted to take his children
master Fawaz and master Meer for Umrah and Haj at Mecca and Madina,
Saudi Arabia and also sought relief that, in respect of prohibit to applicant
from vaccination to children without prior permission of respondent No.1.
4. The applicant is resisted the application by filing her say at
(Exh.-9). According to the applicant the respondent have filed the present
application only with intention to harass the applicant and prolonging the
hearing of interim maintenance application. It is contended that, Hon’ble
Family Court, Nasik in custody petition filed by respondent, has granted
access and allowed the visitation rights to respondent No.1. The applicant
has filed the transfer petition in the Hon’ble Bombay High Court for
transfer custody petition to the Hon’ble Family Court, Bandra, Mumbai,
which is pending in the Hon’ble Family Court, Nasik and proceeding of the
petition in the Hon’ble Family Court, Nasik has been stayed. It is
contended that, no harm or prejudice would cause to respondents if
application is rejected, as respondent No.1 has already granted access to
children vide order dated 03/05/2023 by Hon’ble Family Court, Nasik. The
said custody petition is subjudice before Hon’ble Family Court, Nasik,
therefore, respondents are not entitled for relief sought.
5. It is further contended that, respondent is not provided any
satisfactory jurisdiction in said application at this stage. The application is
filed without any provision therefore, application be rejected. It is
-- 2 of 8 --
~3~
C. C. NO. 192/DV/2022 ORDER BELOW EXH.-8
contended that, the custody petition is subjudice before Hon’ble Family
Court, Nasik, wherein relief of access of two children has been granted to
respondent No.1 in spite of that, the respondent No.1 has filed present
application. It is contended that, the respondent No.1 never provided any
means of maintenance even medical and educational expenses have not
been provided. Therefore, application of respondent is not at all bonafied.
6. It is further contended that, on 28/08/2021 the respondent
No.1 forcefully attempted to take away children from the applicant,
therefore, she filed N.C. report in police station. It is denied by the
applicant that, she has suppressed that, she is suffering from Bipolar-
Disorder. According to her due to suffering lot of physical and mental
harassment during course of marriage she is suffering. Lastly, the applicant
prayed that, application be rejected.
7. The applicant has filed the proceeding under section 12 of
Domestic Violence Act, 2005 for various reliefs. The respondents have filed
their reply to main petition. The application also filed application for
interim maintenance. Thereafter, the present application on 21/09/2023
has been filed by the respondents.
8. Respondents in support of their application filed on record
various prescriptions and medical documents regarding the decease
suffering by the applicant alongwith the present application. The
application in support of her say filed on record orders passed by Hon’ble
Family Court, Nasik in petition No.D38/2022, order passed in Criminal
M.A. No.1372/2022. The copy of complaint filed by her through e-mail
against respondent. The respondent also filed on record copy of the writ
petition and copy of order dated 02/09/2023.
9. I have heard elaborated arguments of Ld. Advocate Shri Suhail
Shariff for the applicant and Ld. Advocate Shri Ashish Singh for
respondents.
-- 3 of 8 --
~4~
C. C. NO. 192/DV/2022 ORDER BELOW EXH.-8
10. Before proceed further, I would like to state here that, section
21 of Protection of Women From Domestic Violence Act, 2005, provides
that,
Notwithstanding anything contained in any other law
for the time being in force, the Magistrate may, at any
stage of hearing of the application for protection order
or for any other relief under this Act grant temporary
custody of any child or children to the aggrieved person
or the person making an application on her behalf and
specify, if necessary, the arrangements for visit of such
child or children by the respondent:
Provided that if the Magistrate is of the opinion that any
visit of the respondent may be harmful to the interests
of the child or children, the Magistrate shall refuse to
allow such visit.
11. On going through said provision it seems that, Magistrate may
grant access of children to respondent and if Magistrate is of opinion that,
any visit of the respondent may harmful to children he shall refuse to allow
the said visit.
12. Ld. Advocate Shri Singh for respondents submits that, applicant
is suffering from mental illness Bipolar-Disorder. He drew my attention to
various prescriptions given by Medical Officer to the applicant and submits
that, applicant is not able to maintain or in position to take proper care of
children due to her mental illness. Frequent visit by respondent No.1 being
father of children is necessary for well being of the children. He further
submits that, children are school going children. Being father respondent
No.1 has every right to visit his children. Though Hon’ble Family Court,
-- 4 of 8 --
~5~
C. C. NO. 192/DV/2022 ORDER BELOW EXH.-8
Nasik allowed relief of visit to children to respondent No.1, but proceeding
is stayed by Hon’ble Bombay High Court. Therefore, the respondent No.1 is
not availing said relief. According to him the applicant only with intention
to prolong hearing of custody application filed by the respondent No.1
before Hon’ble Family Court, Nasik has preferred transfer application in
the Hon’ble Bombay High Court.
13. He further submits that, no prejudice would cause to applicant
if relief as sought is granted. Further, he submits that, in the holy month of
Ramdan is going on therefore, in the month of holy Ramdan the
respondent wants the company of his children. Therefore, the application
be allowed, as prayed. In support of his arguments he relied on case
Himanshu Chordia V/s. Arushi Jain, No. 19072/2021 The Supreme Court
of India, order dated 20/05/2022, wherein it has been observed that,
We have no doubt that, the child needs both parents
and the child would be equally happy, if not happier,
in the company of the mother, as well. The child
would perhaps be happiest if he could have both his
parents. Unfortunately, the parents are unable to
resolve their differences and stay together. Be that as
it may, the child has a right to access both parents,
and get the love and affection of both parents.
Whatever be the differences between the spouses, the
child cannot be denied company of his father.
14. The Ld. Advocate Shri Suhail Shariff for the applicant submits
that, already relief sought in the present petition has been granted by
Hon’ble Family Court, Nasik in the petition No.D-38/2022.
-- 5 of 8 --
~6~
C. C. NO. 192/DV/2022 ORDER BELOW EXH.-8
15. The respondent also filed before Hon’ble Family Court, Nasik
petition for custody of children and also filed suit for Restitution of
Conjugal Rights against the applicant. Now it is also admitted fact that,
applicant has filed transfer petition bearing No.7454/2023, wherein
Hon’ble Bombay High Court on 08/09/2023 passed an order and stayed
the proceeding pending before the Hon’ble Family Court, Nasik bearing
No. A-493/2022.
16. The respondent also filed on record the copy of order dated
23/03/2023 passed by the Hon’ble Bombay High Court in Writ Petition
No.217/2023, where in Hon’ble Bombay High Court directed that even
pending present Writ petition transfer from Family Court, Nasik to Family
Court, Bandra, Mumbai there shall be ad-interim in terms stay of prayer
clause ‘D’.
17. The prayer clause ‘D’ is in respect of the stay sought for
proceeding restitution of conjugal rights filed by the respondent against
the applicant before the Hon’ble Family Court, Nasik.
18. It is contended that, the applicant is suffering from Bipolar-
Disorder. Even she is under going psychiatric treatment. She is not able to
take care of children due to her medical condition. Therefore, periodical
visit be granted and relief also be granted that, during school vacation the
children shall be stay with the respondent No.1.
19. Per contra, it is the contention of respondent that, medical
report and so called documents contending that, applicant is not able to
take care of her children cannot be relied upon without formal proof.
20. Admittedly, relations between applicant and respondents are
admitted to each other. Children are school going children and their
custody is with applicant. It is also admitted fact that, petition for
restitution for conjugal rights and for custody is subjudice before the
Hon’ble Family Court.
-- 6 of 8 --
~7~
C. C. NO. 192/DV/2022 ORDER BELOW EXH.-8
21. It is to be noted that, whether due to mental condition of
Bipolar-Disorder the applicant is able to take care of her children or not is
a matter of evidence. At this stage merely relying on the documents like
copy of medical prescriptions it cannot be concluded that, she is not able
to take care of her children.
22. So far as the relief of visit as prayed in the present case is
concerned, I would like to state here that in petition No.D38/2022 passed
below (Exh.-8) on 03/05/2023 the Hon’ble Family Court, Nasik has
granted access to children and also given schedule of visit before marriage
counselor of Hon’ble Family Court, Bandra. Further, it has also come on
record that on 19/01/2021 the petition under section 97 came to be filed
by the respondent against the applicant, which came to be rejected. The
matter of custody of children, which is subjudice before Hon’ble Family
Court, Nasik. Even transfer petition before Hon’ble Bombay High Court is
also pending. Already Hon’ble Family Court, Nasik has granted access to
children to respondent No.1. In this circumstances and as a matter
regarding the custody of children is subjudice before Hon’ble Family Court,
Nasik, I am in opinion that, at this stage no case is made out for grating
relief, as prayed by respondents.
23. So far as restraining the applicant from vaccination is
concerned I would like to state here that, both applicant and respondent
are from medical profession. Being mother the applicant will take proper
care and caution about the vaccination of children. In this circumstances, it
is not sustainable that she should be restrained from vaccination from the
children or said vaccination be done in the presence of the respondent
No.1. In such circumstances, at present the relief sought by applicant in
the present application cannot be allowed. Hence, I proceed to pass
following order.
-- 7 of 8 --
~8~
C. C. NO. 192/DV/2022 ORDER BELOW EXH.-8
ORDER
1 The application is rejected.
Mumbai.
Date : 03/04/2024.
SRD.
Sd/-
Metropolitan Magistrate,
71st Court, Bandra, Mumbai.
Dictated on :- 03/04/2024.
Transcribed on :- 03/04/2024.
Checked on :- 05/03/2024.
Signed on :- 05/03/2024.
SRD
-- 8 of 8 --