"Belated Remorse Inconsequential": Bombay HC Upholds Order Striking Off Father's Defence For Depriving Mother Of Visitation Rights

The father was violating the visitation order stating that the child did not want to meet his mother. He filed a writ petition challenging the order striking off his defence before the High Court.

After this judgment was dictated by Justice Sandeep V. Marne of the Aurangabad bench in open court, the petitioner's lawyer gave an undertaking that the petitioner would follow the order granting visitation rights to the mother. However, the court said that such an undertaking was inconsequential.

"Petitioner ought to have shown remorse before the District Court in respect of his conduct and improved upon his behaviour at least after his defence was struck off...tendering of such undertaking at a belated stage is inconsequential", the court held.

The district court granted visitation rights to the mother for two hours each Sunday. The order directed that the father not be near his son or be visible to him during the visit so that the son does not get intimidated while meeting his mother. The mother filed an application for striking off the defence of the father due to repeated violation of this order.

The district court struck off the defence of the petitioner under Order 39 Rule 11 of the CPC. It recorded that the father has been near his son during the visitation on every date. He does not allow the mother to take her son close to her. Hence, he has wilfully disobeyed the order of the district court. It also recorded that he had misbehaved in the district court.

The father applied for recall of that order and for restoration of his defence which was rejected by the district court. Hence, he approached the High Court.

Advocate Sanket S. Kulkarni for the petitioner submitted that the visitation order could not be complied with as the child does not want to meet his mother. The child should be referred to a counsellor to determine whether he wants to meet his mother. The court should not have struck off the defence of the father as the child's wish is paramount, it was submitted.

Advocate M. L. Sangit for the mother submitted that the father has repeatedly violated the visitation order. The father did not comply with the order even after the district court passed the order striking his defence. Hence, the district court has correctly struck off his defence.

The court noted that when the District Court struck off the defence of the father, there were 11 violations of the mother's visitation rights on the part of the father. The court observed that the father seems to have obstructed his child during visitation.

The father had tried to get this matter referred to counsellor and the district court had set aside that request. The court noted that the father did not challenge the order granting visitation rights, therefore the question of revisiting that order by referring the matter to a counsellor does not arise.

The court said that the order granting visitation rights has attained finality. Therefore, the petitioner could not have denied visitation rights to the mother on the pretext of disinclination of the child to meet his mother.

While the order to strike off defence is a drastic measure to be avoided by the courts, in the present case the district court has recorded that petitioner has wilfully disobeyed district court's order, the High Court observed.

It noted that even after the order striking off the defence of the petitioner, he defaulted on granting visitation rights to the mother.

The court observed that the child has grown from five years to eight years during the custody battle and said that it is unfortunate that the father is creating hurdles and preventing the mother from meeting the child.

The court further noted that the petitioner's conduct before the district court shows his lack of bona fides and observed that the petitioner seems to be trying to frustrate the order granting visitation rights in an indirect manner.

Hence, the court didn't find any error in the district court order striking off the defence of the petitioner.

Case no. – Writ Petition No. 10758 of 2022

Case title – Shardul Shamprasad Dev v. Manjiri Shardul Dev

Citation- 2022 LiveLaw (Bom) 417 

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