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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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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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13 fca42.18.odtevery 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 JUDGERvjalit
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