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Judgments of Supreme Court of India and High Courts

Dr. Dhiraj S/O Ramshankarji Gupta vs Dr. Radhika W/O Dr. Dhiraj Gupta @ … on 26 July, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

FAMILY COURT APPEAL NO. 42 OF 2018

Dr. Dhiraj Ramshankarji Gupta,
aged about 39 years, Medical Practitioner,
150-A, Wardhaman Nagar, Nagpur …… APPELLANT

…VERSUS…

Dr. Radhika Dhiraj Gupta @
Dr. Reshma Tarannum Mohd. Nasar
aged about 39 years, Medical Practitioner
C/o. Shri Salim Amber Inamdar,
6 UGF, Kanchanjunga Building,
18, Barakhamba Road, New Delhi
and also at 2nd Floor, 8-A Green
Park Main, New Delhi. ……… RESPONDENT
——————————————————————————————-
Shri Avinash Gupta, Senior Advocate assisted by Shri Akash A. Gupta,
Advocate for appellant.
Shri C.S.Kaptan, Senior Advocate, assisted by Shri Masood Sharif,
Advocate for Respondent
——————————————————————————————-
CORAM: R. K. DESHPANDE, AND
ARUN D UPADHYE, JJ.
DATE OF CLOSING FOR JUDGMENT : 16th JULY, 2018
th
DATE OF PRONOUNCING THE JUDGMENT : 26 JULY 2018

JUDGMENT (Per Deshpande, J.)

Admit.

The learned counsel for the respondent waives

service of notice.

By consent of the learned Senior Advocates, the

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matter is heard finally.

2] The challenge in this appeal is to the judgment

and order dated 13.04.2018 passed by the Family Court No.2

at Nagpur, in Petition No. D-51 of 2017, filed under Section

25 of the Guardian and Wards Act, 1890 read with Section 2

of the Hindu Minority and Guardianship Act, 1956. The claim

of the appellant for custody of his minor son Raajveer has

been dismissed, but he is held entitled to visitation rights and

access to the minor child, whose custody is to remain with

the respondent-mother.

3] During the pendency of this appeal, we passed

an order directing both the parties to submit their respective

proposals in respect of the custody of a child and providing

visitation rights and access to him. The appellant was asked

to state the mode and manner in which the visitation rights

and access to a minor child shall be provided, if the custody

is to remain with him. So also in similar fashion, the

respondent-mother was also asked to submit such proposal if

the child is to be retained in her custody. Accordingly, both

the parties have submitted before us the proposals in writing.

We found the proposal for visitation rights and access to a

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minor child submitted by the appellant-father to be just, fair

and proper, as against the proposal submitted by the

respondent-mother. We, therefore, asked the willingness of

the respondent-wife to abide by the proposal of providing

visitation rights and access to a minor child as suggested by

the appellant-father, if the custody of the child is to be

retained with her. She expressed her willingness. There was

insistence by the parties to have personal interview with the

child by this Court.

4] Initially, on 07.06.2018 when this matter was

listed before this Court, it was insisted that the respondent-

mother be given custody of the child which was with the

petitioner for some period. The assurance was given to this

Court and the respondent-mother was directed not to carry

the child anywhere beyond the municipal limits of Nagpur.

Thereafter the complaint was made that the child was not

handed over and the answer to it was that the child was

unwilling to go, though the efforts were made even to take

the child to the place of mother. We did not go into the

merits of the disputed controversy.

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5] On 28.06.2018 which was the day of birth of the

minor child, we directed his custody to be handed over to the

respondent-mother from 8 a.m. to 6 p.m. and from 6 p.m., it

shall be with the appellant-father. Again the same

controversy arose. The complaint was again made and

hence at 10.30 a.m., on 28.06.2018, we directed that the

child can be forcibly taken by his mother as we felt that she

was competent to handle her own child. The arrangement

worked well.

6] The matter was to be heard finally and hence we

fixed the date of 16.07.2018. We directed custody of the child

again to be handed over to the respondent-mother on

11.07.2018 and she was directed to produce the child on

16.07.2018 at 1.30 p.m. with visitation rights to the appellant-

father. The intention was to keep away the child for some

time from the appellant-father, so that he remains

uninfluenced. After interview with the child for 30 minutes,

we directed the custody of the child to be retained by the

respondent-mother until the pronouncement of the judgment

by us, with the visitation rights to the appellant-father.

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7] The appellant and the respondent are doctors by

profession. The appellant is the Orthopedic Surgeon and

practicing at Nagpur, whereas the respondent is the

Consultant Psychiatric and is employed in U.K. The appellant

is the Hindu by religion, whereas the respondent is Muslim.

Both of them were associated with each other since

February, 2003. The marriage between them was solemnized

at Nagpur on 16.02.2008 as per the Hindu rites and customs,

as the respondent had converted herself to Hinduism before

the solemnization of marriage. The respondent is staying in

U.K. since 2004. The appellant had gone to U.K. in the year

2005 and after returning back to India for post graduate

study, he again went back to U.K. The petitioner and the

respondent both thereafter were employed in U.K. On

28.06.2010, son Raajveer was born in U.K. As on this day,

neither for the child nor for any of them, the U.K. citizenship

is acquired.

8] In October, 2016, the appellant came back to

Nagpur with the minor child, whereas the respondent

continued her employment in U.K. The appellant settled

down at Nagpur and the minor child Raajveer was admitted

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in Bhawan’s Bhartiya Vidya Mandir, which is a renowned

school at Nagpur. Probably there was a plan of both to

re-settle in India. The respondent had been intermittently

visiting the child at Nagpur. However, it seems that the plan

of resettlement did not work out. Now, due to the differences

between the appellant and the respondent, the claim for the

custody of a minor child, who is aged about 8 years, has

started.

9] We do not find that any legal issue is involved in

the matter. The controversy is to be decided keeping in view

the facts and circumstances of this case. It is well settled

that in such matters welfare of the child is of the paramount

consideration. The respondent-wife has settled down herself

in U.K. Her mother and other relatives are staying in India,

probably in Delhi and also in Nagpur. She is visiting India in

regular intervals and staying in Nagpur and Delhi. The

appellant-father has settled down at Nagpur and is probably

residing in a joint family, having about 15 members. While

living in the joint family, the child was admitted in Bhawan’s

Bhartiya Vidya Mandir at Nagpur. For some times when the

minor child was in her custody and she was prevented from

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taking away the child out of India, the child was admitted in a

School at Noida and was staying with his maternal uncle,

where the appellant had been getting the visitation rights and

access to a minor child.

10] After hearing both the senior advocates

appearing for the parties and going through the record and

the findings in the judgment of the Family Court, we find that

both the parties are financially well-off and prepared to do all

such things which are possible to keep the child comfortable.

We have, therefore, no doubt that the child will be provided

all the best facilities including that of education if he is to be

retained with either of them. We, therefore, turn to what

transpired during the course of interview by us with the minor

child Raajveer in the chamber.

11] During the course of personal interview with the

child, we found that the child has equal love and affection

towards father and mother. He is not averse either to the

appellant and his family members or to the respondent and

her relatives. The child possesses the same love and

affection towards the family and the relatives of the appellant

and the respondent. In our view, it will not be in the interest

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and welfare of a minor child if he is to remain in U.K., for

several reasons. Firstly, the child is intelligent, bold and firm

in his decision to stay in the social atmosphere of the family

of father and is comfortable in the educational atmosphere in

the school at Nagpur. Secondly, he is averse to the lonely

atmosphere in U.K. Thirdly, he prefers to stay at Nagpur,

rather than staying with his material uncle at New Delhi, that

too away from his mother. Apart from this, if the child is to be

retained with respondent-mother at U.K., that may hamper

the visitation rights and access of the appellant-father and his

family members to a minor child Raajveer.

12] In these facts and circumstances of the case,

this appeal is allowed. The custody of the minor child

Raajveer be given to the appellant-father with the rights of

visitation and access to the respondent-mother in the manner

and the arrangement agreed before us by the appellant-

father as under;

[i] The sole custody of 8 years old child Master

Raajveer Gupta will remain with the appellant-

father subject to the visitation rights of the

respondent-mother as are enumerated below.

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[ii] Raajveer will resume his studies at Bhartiya

Vidya Bhavan, Shrikrushna Nagar, Nagpur,

forthwith as the academic session of the school

has started on 21.06.2018. The respondent

shall be free to monitor and supervise the

academic as well as extra-curricular activities of

the minor and take necessary major decisions

on the same jointly with the appellant.

[iii] The respondent can take the minor child to U.K.

twice a year during his summer vacations as

well as Diwali vacations and spend the entire

summer vacation and Diwali Vacation with her.

The minor child shall only be with appellant and

his family on Diwali day (Laxmi Poojan) in India

and the remaining entire time with the mother.

[iv] In case of the mother coming to Nagpur any time

during the entire year, she be entitled to

complete overnight access to the child without

any restriction for as many days as she stays at

Nagpur without any limitation, subject to the

childing attending school. This access shall be

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in addition to vacation access as stated above.

If this period extends beyond 15 days at a

stretch, the appellant-father be given overnight

access to the minor on weekend-Saturday and

telephone access.

[v] The respondent mother be entitled to have a

daily telephonic and or video telephone call with

the minor son between 5 to 6 p.m. every day

throughout the year. The immediate family

members of the respondent be also entitled to

the said telepohonic/video conferencing access.

[vi] In respect of the Birthday celebration of the

minor, the mother to have unrestricted 10 hours

access during the day and the evening access

and the evening be spent with the appellant as

the Birthday of the minor coincides with the

birthday of his first cousin, who like to celebrate

together.

[vii] Both parties shall undertake not to opt for British

Citizenship for Raajveer Gupta or otherwise

change his nationality before he turns major.

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[viii] The parties agree that they will keep each other

informed of any change in their respective

residential addresses.

Appeal is allowed in above terms. No orders as

to costs. Needless to state that if the respondent shifts

herself permanently in India, she can move the Court for

modification of this order. Similarly, change in any

circumstances would entitle the parties to seek modification

of order.

JUDGE JUDGE

At this stage, Shri Naik, the learned counsel

appearing for the respondent submits that the custody of the

minor child be kept with the respondent-mother for a period

of eight weeks so as to enable the respondent-mother to

exhaust her further remedies available in law.

We have expressed that son Raajveer will

resume his studies at Bhartiya Vidya Bhavan, Shrikrushna

Nagar, Nagpur, forthwith, as the academic session of the

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school has started on 21.06.2018. We expect the appellant

to make all such arrangements immediately to get the minor

child admitted in the school. However, we accept the oral

prayer made by the respondent-mother before this Court to

retain the custody of minor child with her on the following

conditions :-

[A] The minor child shall not be moved out of

municipal limits of Nagpur.

[B] The minor child shall be dropped in the School

and picked-up after the schooling hours are over

by the respondent-mother and the appellant-

father shall not disturb the child during the

schooling hours.

[C] The appellant-father shall have access to the

child for a period of one hour during 6.00 p.m. to

7.00 p.m. every day and he shall accordingly

scrupulously return the child to the respondent-

mother.

[D] The appellant-father shall be entitled to obtain

the custody of minor child in the evening of

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every Friday between 6.00 p.m. to 7.00 p.m from

the residence of respondent and the minor child

shall be returned on every Sunday before 6.00

p.m.

This arrangement shall continue to operate irrespective

of the period of eight weeks, till the respondent-mother stays in

Nagpur.

                                JUDGE                          JUDGE

Rvjalit

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