Disposed

Mr Pascal Mazurier v. Mrs Suja Jones Mazurier

Karnataka HC11 Jul 2024WP/30651/2018

Case brief

AI extract

What is this about?

Father challenged rejection of his application for interim custody/visitations of three children in a guardianship case. The High Court granted alternate-weekend custody of the second son with 50% share of summer vacation, allowed the daughter supervised two-hour fortnightly Sunday meetings, and disposed of the writ petition.

What did the court decide?

Alternate weekend custody of second son (Friday 5 pm to Sunday 8 pm), 50% of summer vacation, and daughter to spend two hours with father every alternate Sunday at his place.

Mr Pascal Mazurier Vs Mrs Suja Jones Mazurier — Child Custody and Guardianship | Karnataka HC (2024)

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NC: 2024:KHC:26698 WP No. 30651 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF JULY, 2024 BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 30651 OF 2018 (GM-FC)

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BETWEEN:

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MR PASCAL MAZURIER AGED ABOUT 45 YEARS SON OF MR. JACQUES MAZURIER RESIDING AT NO.101-A SANTOSH APARTMENTS, 2^ND MAIN ROAD AMARJYOTHI LAYOUT, SANJAY NAGAR BENGALURU - 560 094

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…PETITIONER

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(BY SRI. P B APPAIAH, ADVOCATE)

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AND:

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Digitally signed by MEGHA MOHAN

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Location: HIGH COURT OF KARNATAKA

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MRS SUJA JONES MAZURIER AGED ABOUT 43 YEARS, WIFE OF MR. PASCAL MAZURIER RESIDING AT FLAT B-202, RENAISSANCE EXOTICA JAKKUR PLANTATION, YELAHANKA BENGALURU - 560 064

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…RESPONDENT

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(BY SMT. SAHANA BASAVAPATNA, ADVOCATE)

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THIS WP FILED UNDER ARTICLE 227 OF THE CONSTITUION OF INDIA PRAYING TO QUASH THE ORDER DATED 17.4.2018 PASSED BY THE III ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU ON I.A. NO.14 IN G. & W.C. NO.115/2014 AT ANNEXURE-A AND ETC.,

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THIS PETITION, COMING ON FOR DISMISSAL, THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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NC: 2024:KHC:26698 WP No. 30651 of 2018

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ORAL ORDER

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Aggrieved by the order passed in I.A.No.14 in G & W.C. No.115/2014 dated 17.04.2018, the father is before this Court. A common order was passed on I.A.Nos.12 to 14.

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I.A.No.12 is filed by the petitioner / father under Order XVIII Rule 17 of CPC seeking to set aside the order dated 18.04.2017 and to permit the father to lead further evidence in the interest of justice.

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2(i) I.A.No.13 is filed by the petitioner / father under Order VI Rule 17 of CPC seeking to permit to amend the petition by adding paragraph Nos.18(A) to (F) in the interest of justice.

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2(ii) I.A.No.14 is filed by the petitioner / father under Sections 12 and 25 of the Guardians and Wards Act r/w. Section 151 of CPC to make an interim arrangement for the interim custody / visitation of three minor children i.e., two sons and one daughter from 5.00 p.m. on every Friday to 8.00 p.m. on ensuing Sunday, during every alternative week-end of

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every month and to have interim custody of children for four weeks’ period during summer vacation in June 2018 and other

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school vacations of every academic year as per the dates furnished by the parents to the Court.

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2(iii) The Court had allowed I.A.Nos.12 and 13. Accordingly, the case was reopened and the petitioner was permitted to amend the main petition as prayed for and was permitted to adduce further evidence. Coming to I.A.No.14, the Court had rejected the same and it was clarified that, the petitioner could exercise the visitation rights on the minor sons as per the orders of the High Court in W.P.No.24666/2015.

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2(iv) In W.P.No.24666/2015, by order dated 15.10.2015, this Court granted interim visitation in respect of two children in the supervision of one adult member of the choice of the mother. For the purpose of such visitation, by virtue of the said order, this Court had permitted the petitioner / father to have the company of the children and they can be picked up from the house of the respondent - mother on every first and third Saturday at 11.00 a.m. and they shall be dropped back at 4.00 p.m. The children shall be accompanied by another adult member of the respondent’s choice in order to allay her

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apprehension that the children might be abused by the father. Aggrieved by the said order, the father is before this Court.

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Learned counsel appearing for petitioner – father submits that when an order is passed in the writ petition which is an interim arrangement, when the father has filed an application i.e., I.A.No.14 seeking certain reliefs, without any discretion and without considering the same, the Court had passed such an order. It is stated that during the pendency of the writ petition, the first son has attained majority and he is now in France. In between several orders were passed i.e., 04.04.2019, 18.09.2019, and 10.02.2020 by this Court wherein

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the father was given interim custody of both the boys. He submits that a complaint is registered against the father under the provisions of the Protection of Children from Sexual Offences Act, 2012 stating that the father has abused the daughter. After investigation, charge sheet was filed and the same is numbered as Spl.C.C.No.178/2013 wherein the father came to be acquitted by judgment dated 19.04.2017. It is submitted that thereafter, he has filed G & W.C. and also other I.As., seeking custody of the children. He submits that right from 2018, as no specific orders are passed, the second son is

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coming and is spending time without there being any orders from the Court and the daughter has last visited the father when the father’s mother had come from France during Christmas and they met in a restaurant. It is stated that the father is caring and the other two children are comfortable with the father. An order shall also be passed with regard to the daughter also. The daughter whenever she came to the father along with brothers, she is comfortable. He has relied on the judgment passed by the Co-ordinate Bench of this Court in the case of JYOTI PRIYA v. PAUL GOODWIN J.¹ wherein this Court emphasized the need to pass orders on visitation considering the welfare of the child. Learned counsel submits that the father is entitled for the reliefs that he sought in I.A.No.14.

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Learned counsel appearing for the respondent / mother submits that the reliefs that are sought by the petitioner / father in I.A.No.14 are similar to the reliefs that he sought in G & W.C. itself. Allowing I.A.No.14 amounts to virtually allowing G & W.C. itself. It is submitted that all through, the interim applications that were filed before this 1 Writ Petition No.101082/2021 dated 09.08.2021

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Court were in respect of both the sons, but they were not with regard to the daughter. So far there are no orders passed by any Court granting visitation or interim custody of the daughter to the father. It is not disputed that she is visiting the father sometimes. But it is submitted by the learned counsel that on a weekly basis or fortnightly basis it is not comfortable for her to stay with the father. As regards the son visiting the father during vacation and on other days, it is submitted that he is okay with him. But when it comes to the daughter, she feels very uncomfortable in meeting the father as she has all those bad memories. It is submitted that according to the daughter, she requires some more time and space to get over all her memories and to develop the bonding with the father. It is submitted that, at this point of time, as she is now aged 15 years and particularly considering the kind of allegations that are made, it would be very difficult for the daughter and it is not appropriate to grant the interim custody of the daughter to the father. She should be given time to get over all her fears. She submits that father has not sought for the relief before the Court below.

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4(i) Learned counsel relied on judgment in case of COMMISSIONER, BANGALORE DEVELOPMENT

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AUTHORITY v. S.VASUDEVA & Others² and submits that the

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Hon’ble Apex Court has held that the High Court cannot travel beyond the jurisdiction conferred on the Court. She relied on as many as eight judgments with regard to powers of the High Court while exercising power under Article 226 of the Constitution of India, those judgments are not relevant to this case or they apply to the facts of the case. Then she relied on the judgment of the SUMEDHA NAGPAL v. STATE OF DELHI³ (para 2) and ANTU MAHTON v. RAMRAJ SINGH⁴ (paras 10 and 11), YUSUF ALI MAMOONJI v. ALIBHOY & Others⁵ (para 5) and submits that G & W.C. proceedings are not summary in nature and all the issues can be dealt with by the Court in G & W.C. proceedings and all the reliefs can be sought by the husband before the Court below and accordingly, prayed that the writ petition may be dismissed.

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2 (2000) 2 SCC 439

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3 (2000)9 SCC 745

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4 1955 SCC Online Pat 146 : AIR 1957 Pat 720

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5 1925 SCC Online Lahore 152 : AIR 1925 Lah 567

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Heard learned counsel on either side, perused the material on record. The husband has filed G & W.C. and filed I.A.No.14 seeking interim custody and custody during the vacation. As far as the first child is concerned, now it has become infructuous as he is a major and staying out of India.

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Coming to the daughter and the second son, as far as the son is concerned, he has been meeting the father along with the brother and several orders are passed by this Court in this writ petition. He has spent considerable time with his father during vacation. Now the submission that is put forth before this Court is that he has other works to do and is not so comfortable to visit the father as requested by the father in I.A.No.14. This particular submission of the learned counsel appearing for the respondent this Court is not able to appreciate. It is the submission of learned counsel for the respondent that because of his school education and other activities in the household, the son is not so comfortable in going to the father’s place very often and if it is vacation and on some holidays he is comfortable. This submission cannot be appreciated. This generally happens in all the cases where the children are staying with one of the parent, this is the constant

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complaint that they are uncomfortable with the father. Meeting the father is not something the child has to do, when he has no other work. For his physical, psychological well being and to evolve as a good human being he requires to have the love and affection of both the father and the mother. Unfortunately in this tough fight between father and mother, the children are facing these kinds of situations which is creating gap between them. In the process of satisfying the parent with whom they are staying, they are coming up with these kinds of answers that they are not comfor2table. This Court while exercising “ Parens Patriae ” jurisdiction is more concerned with the welfare of the child. If what he wants is not in his interest the Court would not permit him to do that.

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As far as the boy is concerned, the father can have the custody of the child Joshua from 5.00 p.m. on every Friday to 8.00 p.m. on Sunday during every alternative weekend of every month and when it comes to the Summer Vacation, both parents will have the proportionate 50% of the Summer Vacation.

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Then, coming to the case of the girl who is now 15 years old, it is the submission of the learned counsel appearing

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for the father that as the Court has acquitted the father in the criminal case and according to him, those are the allegations and a story put forth by the wife in view of the differences between both of them and a competent criminal court has acquitted him. Now there cannot be any reason not to grant the interim custody/visitation of the child and he has drawn the attention of this Court to the judgment of the criminal court where the father is acquitted. This Court is conscious and cannot lose sight of the fact that right from 2018 till now the father has never asked for the interim custody of the daughter except in I.A.No.14. In the interlocutory applications that were filed before this Court, he was continuously asking for the visitation or interim custody of both the boys and did not press with regard to interim custody of the daughter. But the fact remains is that he was never having custody of the daughter right from 2012 till 2024. However on and off she was visiting the father. The father never had the visitation or interim custody of the daughter. During May 2021, along with two brothers, she stayed with the father. It is also an admitted fact that against the judgment of acquittal, the mother has filed an appeal and the appeal is pending consideration. This Court at

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this point of time, considering the submission made by the learned counsel appearing for the respondent / mother and also submission made on behalf of the minor, expressing the feelings of the daughter that she wanted to have some more time to settle herself, this Court is not inclined to pass any orders. In criminal case, on the touchstone of beyond reasonable doubt the orders are passed and admittedly an appeal is pending and this Court is not expressed any opinion. But this Court has very much concerned about the feelings of the daughter. But unless and until she meets the father often, the submission that is made that she just wants time to get in touch with the father, and to accept the father cannot be appreciated.

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In that view of the matter, every fortnightly whenever the father is exercising the interim custody of the second son, the daughter can accompany him and spend about two hours with the father on Sunday. The daughter can come to the father’s place on Sunday i.e., every alternative Sunday she shall meet her father at the father’s place in between 10 O’clock and 12 O’clock. The father shall pick up and drop his daughter. In respect to any other claim on vacations and on

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