P N v. G G

1. Challenge in this appeal is to the order dated 18.12.2017 passed by the Family Court. The appellant is aggrieved with the observations and the directions of the Family Court that the mother has not acted in the interest of the minor child and has unauthorisedly shifted the child to a school in Faridabad from Carmel Convent School, Delhi and removed the child outside the jurisdiction of this Court.

2. Learned counsel for the appellant submits that the mother was forced to shift the child from Carmel Convent School to Manav Rachna International School, Faridabad on account of the conduct of the 2019:DHC:1668-DB respondent/husband and on account of the fact that the child was embarrassed by the visits of her father to the school. She submits that the Family Court has been influenced by the submissions of the respondent that an undertaking was given as early as in the year 2013 by the appellant that she would not shift the child from Carmel Convent School or outside the jurisdiction of Delhi whereas no such undertaking was given and thus, the order is erroneous and is liable to be quashed and set aside. She further submits that the mother has acted in the best interest of the child, since the school at Faridabad is a far better school than Carmel Convent School, Delhi where the child was earlier admitted. She submits that in the school where the child is studying at present, she is now fully accustomed and is happy with her peer group and in case the order of the Family court is upheld, serious prejudice would be caused to the rights of the child and the child would be emotionally disturbed.

3. Mr. Mendiratta, learned counsel for the respondent submits that having regard to the past conduct of the appellant, the respondent was always apprehensive that the appellant-mother would remove the child from the jurisdiction of this Court to deprive the father of visitation, which she has been successful, for the past almost 6 years. He submits that repeated orders regarding meeting with the child have been successively disobeyed by the appellant. Mr. Mendiratta, counsel for the respondent -father submits that the respondent-father was always apprehensive that the appellant mother would remove the child from the jurisdiction of this court. He submits that an application was filed along with Guardianship petition on 09.01.2013. In this application, the following prayers were made: “Wherefore in light of the facts and circumstances of the case and the averments made hereinabove it is most respectfully prayed that this Hon’ble Court may be pleased to: a) Direct the respondent to immediately restore custody of the minor child to the petitioner; b) Direct the respondent to not take or cause the minor child to be taken out of the jurisdiction of this Hon’ble Court; c) Pass any other or further orders as this Hon’ble Court may deem fit and proper in the interests of justice.” (Emphasis added)

4. Attention of this Court is drawn to the reply to this application filed by the appellant herein wherein it was categorically denied that there was grave and immediate apprehension that the respondent will attempt to take the child out of the jurisdiction of this Hon’ble Court. Para 2 of the reply is reproduced below:

5. Mr. Mendiratta has also drawn the attention of this Court to the order dated 18.04.2013 which has been referred to in the impugned order. Mr. Mendiratta submits that the undertaking may not be expressed in nature, but the respondent father had expressed his apprehension before the Court of the child being removed from the jurisdiction of this Court, but the counsel for the respondent had objected to the same. He submits that this objection would be a tacit assurance/undertaking on the part of the appellant herein that the child was not being removed from the jurisdiction of this Court. It is next contended that in case the appellant had cogent reasons to remove the child from the jurisdiction of this Court, the father should have been informed if not consulted or atleast leave of the Court should have been sought knowing fully well that the father had repeatedly brought to the notice of the court that he feared that the child would be removed from Delhi. Counsel further submits that in line with the apprehension, the respondent filed two subsequent applications, prayers of one of the applications, which was filed in the year 2016, is reproduced below:

6. Mr. Mendiratta submits that in response to this application, the appellant had pointed out that the child is suffering harassment and embarrassment at the hands of her father at the school and the minor was refusing to go to the school, as she was embarrassed to face her friends and teachers. Mr. Mendiratta submits that even at this point of time, neither any leave was sought from the Court nor it was disclosed that the appellant would remove the child from the jurisdiction of this Court. He submits that this reply was filed on 24.02.2017, a date which is available on the affidavit annexed to this reply. He submits that in fact, when the reply was filed, the child had, in fact, been removed from the jurisdiction of this court. Mr. Mendiratta also contends that the appellant herein had filed a transfer petition before the Supreme Court of India seeking transfer of the Guardianship petition filed by the respondent to the Court at Faridabad. It is submitted that the transfer petition was dismissed by an order dated 12.04.2017, the effects would be that the prayer for removing the child from the jurisdiction of this court was expressly declined even by the Supreme Court of India. Counsel further submits that the appellant mother has not acted in the benefit and the best interest of the child as she has shifted the child from Carmel Convent School, which is a highly reputed and amongst the best schools of Delhi, to an unknown school in Faridabad and that too without a transfer certificate. He submits that the implication of such admission without a transfer certificate would be that the child would not be allowed to appear in her Board examinations without a transfer certificate, as admission to the school at Faridabad cannot be regularised without the transfer certificate. In response to the submissions so made, Ms. Jasmine, learned counsel for the appellant submits that the appellant is single handedly bringing up her daughter and even no maintenance is being paid, and she has acted in the best interest of her child.

7. Mr. Mendiratta at this stage points out that successive applications made by the appellant for maintenance have been withdrawn to avoid filing her income affidavit; however, the respondent has already taken steps to make deposits in the name of the minor child and almost Rs.

8. We have heard learned counsel for the parties and considered their rival submissions. It is not in dispute that at the time when the Guardianship petition was filed, the child was residing within the territorial jurisdiction of this court and she was an ordinary resident of Delhi. Successive applications filed by the father leaves no room for doubt that the respondent-father was always apprehensive that the child would be removed from the jurisdiction of this Court, which is evident from the fact that his first application was made on 09.01.2013, prayer (b) of which we have extracted above is again reproduced below:- “Direct the respondent to not take or cause the minor child to be taken out of the jurisdiction of this Hon’ble Court” It is also evident that this prayer was pressed when the matter was listed in Court on 18.04.2013, but the apprehension of the respondent was refuted and objected to by the appellant. The respondent thereafter filed two applications, prayer (a) of one of the applications we have reproduced in para 4 aforegoing.

9. We also find that although parties have been filing a large number of applications, which is evident upon reading the impugned order, but the appellant did not deem it appropriate to either seek leave of the Family Court much less consult/inform the respondent, who is the father of the child before removing the child from the jurisdiction of this court and from a highly reputed school of Delhi to a comparatively unknown school at Faridabad, where she is currently studying.

10. We find that in reply to the first application filed on 09.01.2013, the respondent’s apprehension of the child being removed was refuted by the appellant, as is evident upon reading of the reply, which we have extracted in above-mentioned para 4 and we reproduce again:- “2. That the contents of para No. 2 of the application are wrong, incorrect and denied. It is denied that there is a grave and immediate apprehension that the respondent will attempt to take the child out of the jurisdiction of this Hon’ble court so as to frustrate the rights of the petitioner or that the respondent wants to use the child as a pawn in the litigation between the parties, as alleged in the para under reply. It is most respectfully submitted that the respondent has no intention to take the child out of the jurisdiction of the Hon’ble Court. The minor child Vaidehi is studying in Class-1A in a reputed convent school namely Carmel Convents School, Malcha Marg, New Delhi, so the question taking the child out of the jurisdiction of this Hon’ble Court does not arise. The petitioner may be put to the strict of the allegations made by him in the para under reply.” (emphasis added)

11. The Supreme Court in the catena of the judgment has held that admissions in pleadings and judicial admissions made by the parties before a judge during the course of the litigation need not to be proved and stands binding on the parties, whereas the term admissions is inclusive of both the express and implied admissions. In the case of Nagindas Ramdas v. Dalpatram Ichharam reported at (1974) 1 SCC 242 in its paragraph 27 in somewhat different facts, the Supreme Court categorically held as under:-