Case Note & Summary
The petitioner-wife challenged an order dated 17 July 2017 passed by the Family Court No.2 at Mumbai, which was passed to execute an earlier order dated 4 July 2016. The earlier order had directed the respondent-father to fix an appointment with Dr. Harish Shetty, Child Psychologist, and the mother to take their son Parshva (then aged about 17 years) for counseling. When the mother failed to comply, the father filed an execution application. The Family Court, by the impugned order, directed coercive steps against the mother, including cancellation of maintenance, attachment of movable and immovable properties, striking off her defence in the pending matrimonial petition, and her arrest with shifting custody of the child to the father. The High Court, by consent, appointed another child psychologist, Aekta Brahmbhatt, to interview the child and submit a report. The interim report indicated that the child was unwilling to attend counseling. The High Court stayed the impugned order and recorded the mother's statement that she would take the child to the counsellor. However, the child continued to express unwillingness. The High Court held that the child's welfare and wishes are paramount, and the Family Court's coercive execution order was unsustainable. The court set aside the impugned order and directed that the child be produced before the counsellor only if he is willing, and if not, no coercive action shall be taken against the mother.
Headnote
A) Family Law - Child Custody - Execution of Orders - Coercive Measures - Guardian and Wards Act, 1890 - The Family Court passed an order directing the mother to take the child for counseling, and on her failure, issued a coercive execution order threatening cancellation of maintenance, attachment of properties, striking off defence, and arrest. The High Court held that such coercive steps are impermissible as the child's welfare and willingness are paramount, and the court cannot force a child to attend counseling against his will. (Paras 1-5) B) Family Law - Child Custody - Child's Wishes - Best Interests - Guardian and Wards Act, 1890 - The child, aged 17 years, expressed unwillingness to attend counseling. The High Court emphasized that the child's wishes must be given due weight, and no coercive action can be taken against the mother for the child's refusal. The court directed that the child be produced before the counsellor only if he is willing. (Paras 3-5)
Issue of Consideration
Whether the Family Court could pass coercive directions including cancellation of maintenance, attachment of properties, striking off defence, and arrest of the mother to enforce an order directing the mother to take the child for psychological counseling, when the child was unwilling to attend.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 17 July 2017, and directed that the child be produced before the counsellor only if he is willing. No coercive action shall be taken against the mother for the child's refusal.
Law Points
- Execution of orders relating to child custody and welfare must prioritize child's best interests
- coercive measures against parent not permissible if child refuses
- child's wishes must be considered
- Family Court cannot enforce counseling by threatening maintenance cancellation or arrest
