Child emerges victor in a parental battle

February 20: Is a father guilty of contempt if he fails to arrange a meeting between his divorced wife and his daughter due to stiff resista...

February 20: Is a father guilty of contempt if he fails to arrange a meeting between his divorced wife and his daughter due to stiff resistance from the child? The Bombay High Court says no.

Ruling on a petition filed by an army officer, a division bench of Justice A V Savant and Vishnu Sahai held that he did not willfully disobey a Bandra Family Court order to allow the mother access to the child. On the contrary, his inability stemmed from the fact that the girl herself did not want to meet her mother. "Law does not compel the performance of the impossible. We should not lose sight of the fact that court did not stipulate that in case the child was not willing to go with the mother, force should be deployed for the purpose," the judges observed, adding that "approach of the courts in such situations should be practical than wooden."

The officer was accused of contempt by his doctor wife. According to her, he had disobeyed the family court order granting her access to the child for two months. Since thefamily court issued a suo moto contempt notice to the army officer, he moved the high court.

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The ruling comes close on the heels of the permission granted by Justice S Radhakrishnan to a minor to stay with her step-mother instead of the biological mother (Express Newsline, February 18). Both the cases are significant in showing the humane handling of issues.

After the couple separated in 1992, it was agreed in the consent terms that the daughter will remain with the father. However, the mother later moved the family court for the custody of the child. While the custody was denied, it was decided that she could take the child with her for two months (May 16, 1994 to July 4, 1994). But, this arrangement did not work out and the armyman incurred contempt proceedings.

The army official was posted on the Kashmir border at the relevant time and therefore could not remain present in the high court. His sister-in-law, with whom his daughter had stayed for five years, filed an affidavit.

The affidaviturged the court to dwell on three specific points which showed the child’s resistance to meet the mother. First, the child’s refusal to go into the mother’s custody. Second, her unwavering stance when the mother moved the family court. And third, a high court order in 1997 which repeated the child’s view which was in response to a fresh custody petition filed by the mother.

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The judges further added that they were informed that the divorced couple later remarried. They have given birth to children in their respective marriages. "We feel that larger considerations of justice necessitate discharging the contempt notice against the armyman. Too much adherence to technicalities can result in justice becoming an instrument of oppression and injustice…"

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