IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1344 of 2018
CIVIL APPLICATION NO. 1 of 2018
DHRUV KANAIYALAL BAROT
GATI DHRUV D/O AJAYKUMAR DAVE
MR ASHISH B DESAI(5163) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1
MS.SHIVANI V TRIVEDI(7225) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 26/07/2018
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This appeal is filed by the husband of the respondent to
challenge an order dated 22.12.2017 passed by the Principal
Judge, Family Court, Gandhinagar. By such order, the learned
Judge was pleased to dismiss the husband’s application for
custody of the child under the Guardians and Wards Act.
2. The appellant-husband and the respondent-wife were married
on 21.12.2006. Out of the wedlock, one child Ishan was born
who is presently aged about 9 years. Since matrimonial
disputes surfaced between the two sides, the wife started
residing separately with the son. The appellant filed the
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application before the Family Court seeking custody of the
child. The learned Family Judge did not find appropriate to
handover custody of the child to the father citing reasons of his
non-availability through the day to look-after him. The learned
Judge noted that the mother is a teacher in the same school in
which, the child is studying. Inter alia on such grounds, the
application was dismissed.
3. Learned counsel for the appellant had principally requested for
limited visitation rights of the husband. Even otherwise, we
are not inclined to disturb permanently the custody of the child
from his mother. There is no reason to disturb the child from
the care and protection of the mother. However, as a father, the
appellant would also have interest and a right to be involved in
the upbringing of the son. The request for limitation visitation
right is imminently just.
4. The practical aspect of the matter however is quite different.
Previously, we had attempted to ensure that the father and son
meet with each other and amicably enjoy each other’s
company. Our two attempts totally failed. The son was most
uncomfortable in the presence of the father and plainly refused
to meet him. Such strong allergy for the father is not normal
and we are sure, would not have developed overnight. Having
spoken to the mother on couple of occasions, we had
conveyed to her that she had an important role to play in
ensuring that the child gets the company of the father also.
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We are not sure if the mother had taken our remarks positively
and sincerely. Be that as it may, we cannot compel a
screaming child to go to the father whether he is willing or not.
5. First Appeal is therefore disposed of with following directions:
(i) It would be open for the father to visit the son at his
school after the school hours and spend upto half an hour at his
school or just outside the school campus on every Wednesday
and Friday of the month.
(ii) This arrangement is subject to the son being willing to
spend such time with the father. In other words, the appellant
shall not compel the son under the order of the Court to act
against his wish or force him to spend the time. After this
arrangement works out satisfactorily, it will be open for the
appellant to apply to this Court for further enlargement.
(iii) It would be open for the appellant and respondent to
further negotiate these terms.
6. In view of disposal of First Appeal, Civil Application would
not survive. Hence, the same is disposed of.
(AKIL KURESHI, J)
(B.N. KARIA, J)
JYOTI V. JANI
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