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Judgments of Supreme Court of India and High Courts

Lt Col Iqbal Bahadur Tegh Bahdur … vs Dr Dentist Mrs Ann S Dutt on 30 July, 2021

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021
LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 694 of 2019
With
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2019
In
R/FIRST APPEAL NO. 694 of 2019
With
R/CROSS OBJECTION NO. 20 of 2019
In
FIRST APPEAL NO. 694 of 2019
With
R/MISC. CIVIL APPLICATION NO. 528 of 2019
In
FIRST APPEAL NO. 694 of 2019
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2020
In
R/MISC. CIVIL APPLICATION NO. 528 of 2019
In
FIRST APPEAL NO. 694 of 2019
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO.2 OF 2020
IN
R/MISC. CIVIL APPLICATION NO. 528 OF 2019
With
R/MISC. CIVIL APPLICATION NO. 445 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE VINEET KOTHARI

and

HONOURABLE MR. JUSTICE B.N. KARIA

1 Whether Reporters of Local Papers may be allowed to see the YES
judgment ?

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy of the YES
judgment ?

4 Whether this case involves a substantial question of law as to YES

the interpretation of the Constitution of India or any order made
thereunder ?

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021
LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD)

MRS SANDHYA IQBAL BAHADUR DUTT
Versus
DR DENTIST MRS ANN S DUTT

Appearance:

LT COL IQBAL BAHADUR TEGH BAHDUR DUTT -PARTY IN
PERSON(5000) for the Appellants
MR MAKBUL I MANSURI(2694) for the Respondent
MR SHAILESH M AHIR(9999) for the Respondent

CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA

Date : 30/07/2021

CAV JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. The present dispute before us in the form of First Appeal,

connected Cross-Objections and Contempt Petition, revolves around the

Visitation Rights sought by grandparents – Lieutenant Colonel Iqbal

Bahadur Tegh Bahadur Dutt (Retd.) (Aged 72 years) and his wife –

Sandhya Iqbal Bahadur Dutt (Aged 64 years) in respect of girl child

‘Dhairya’, aged about 9 years now, born on 12.4.2012 out of the wedlock

of their son – Saurabh Iqbal Bahadur Tegh Bahadur Dutt, Major in the

Indian Army and Respondent – Dr. (Dentist) Mrs.Ann S. Dutt (Aged

about 37 years), aggrieved by the order dated 31.1.2019 passed by the

Judge, Family Court No.4, Ahmedabad (Mrs. Minal Nihal Gadkari), who,

on Civil Misc. Application No.101 of 2016, passed the following final

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order on 31.1.2019 :

“1. The present application is partly allowed.

2. It is hereby order that the applicant’s grandparents of minor
‘Dhairya’ shall have right of visitation to meet and to see
her on every first Saturday of every month at the Mediation
Center, during 2.00 p.m. to 4.00 p.m.till 1 years from the
date of this order and thereafter, they shall permitted to take
her with them for outing on aforesaid day and period.

3. It is also directed to opponent that during the visitation hour
she shall handover the custody of minor child to applicants
in Mediation Center and facilitate them to meet minor child
in her absence.

4. Both the parties would take proper care and would
maintain interest of the minor during visitation period.

5. Necessary yadi to sent the Mediation Center of Family
Court, Ahmedabad.

Pronounced in the open Court on 31st day of January, 2019.

Sd/-

(Mrs.Minal Nihal Gadkari)
Judge
Family Court No.4, Ahmedabad
(Code No.GJ00425)”

2. The matrimonial dispute between Major Saurabh and his wife

Dr.Ann S. Dutt, whose marriage took place on 3.12.2009, arose in the

year 2013 and the Respondent – wife started living separately with her

own parents since January, 2013. The dispute between the two sides

aggravated so much that even though they are living only 800 mtrs. apart

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in the same Satellite area of Ahmedabad as per the address given and the

fact as noted by the Family Court that the grandparents claimed custody

of the child ‘Dhairya’ and inter-alia raised a ground that 88 years old

great grandmother, the mother of Mrs.Sandhya Iqbal Bahadur Dutt were

longing to see the child and they being senior citizens, grandparents being

fully qualified, educated and well-off financially were in a position to

take good care of the child born to their son and his estranged wife, the

Respondent herein.

3. The visitation rights were accordingly allowed by the Family Court

in the aforesaid manner, as quoted above. The present First Appeal was

filed by the two grandparents as the son Major Saurabh was living at

outside stations depending upon his postings in the Army at different

places and initially, a Coordinate Bench of this Court passed a detailed

order on 6.5.2019 while admitting the present First Appeal. The said

order is also quoted below for ready reference :

“In light of the earlier order, more particularly in view of the
submission by the mother of the child that she would not be
available till 12.5.2019 and having regard to the fact that before
12.5.2019, the Court would close for Summer Vacation, we
considered it appropriate (since though the appeal is listed in
today’s cause list the cross objection are not listed/placed
alongwith the appeal) to direct the registry to list the Cross

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Objection and place the papers before us today. Accordingly, the
office has, in response to the direction, listed and placed the Cross
Objection.

2. Against the order dated 31.1.2019 passed by learned Family
Court in Civil Misc. Application No.101 of 2016, the original
applicant as well as original opponent have taken out captioned
proceedings in First Appeal No.694 of 2019 and cross objection
No.20 of 2019. The original applicant has filed captioned First
Appeal No.694 of 2019 whereas the original opponent has filed
captioned Cross Objection No.20 of 2019.

2.1 The appellants in First Appeal No.694 of 2019 i.e. original
applicants in Civil Misc. Application No.101 of 2016 before
learned Family Court are grand-parents of 7 years old child who,
now, will commence her study in 3rd standard.

2.2 The opponent in the First Appeal is the mother of the child.

2.3 So far as parents (father and mother of the child) are
concerned, they are prosecuting divorce petition.

The father of the child is serving in Indian Army. Presently,
he is posted outside Gujarat State. The mother has separated and
she stays with her parents and not at the matrimonial house.

2.4 In this background, the grand-parents filed above mentioned
Civil Misc. Application No.101 of 2016 and prayed for visitation
right with the child.

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LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

The title/subject matter of the said Civil Misc. Application
No.101 of 2016 (as described by present appellants) reads thus:-

“APPLICATION FOR GRANT OF CUSTODY UNDER THE
GUARDIANS AND WARDS ACT, 1890, Sec 8, 10 17
AND THE HINDU MINORITY AND GUARDIANSHIP ACT,
1956 AND OTHER APPLICABLE PROVISIONS OF LAW
for visitation rights”

2.5 In the said application, present appellants prayed, inter alia,
that:-

“4(A) granted access and visitation rights to an hour or two
every day at petitioner’s place of residence minor Dhairya
Saurabh Dutt for.

B) Grant overnight stay at petitioner’s place on
weekends.

C) Hear and adjudicate the separate application for
interim measures which is filed with the petition.

D) direct the respondent to pay the cost of this Petition.

2.6 After hearing the parties, the Court passed order dated
31.1.2019. The operative part of the final order reads thus:-

“FINAL ORDER

1. The present application is partly allowed.

2. It is hereby order that the applicant’s grandparents of
minor “Dhairya” shall have right of visitation to meet and
to see her on every first Saturday of every month at the
Mediation Center of the Family Court, Ahmedabad, during
02.00 p.m. to 04.00 p.m. till 1 years from the date of this
order and thereafter, they shall permitted to take her with
them for outing on aforesaid day and period.

3. It is also directed to opponent that during the
visitation hour she shall handover the custody of minor child

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to applicants in Mediation Centre and facilitate them to meet
minor child in her absence.

4. Both the parties would take proper care and would
maintain interest of the minor during visitation period.

5. Necessary yadi to sent the Mediation Center of
Family Court, Ahmedabad.

Pronounced in the open Court on 31st day of
January, 2019.”

3. The appellants seek that the time for visitation granted by learned
Family Court may be enhanced and even number of days may also
be enhanced. The appellants (grand-parents) have prayed, inter
alia, that:-

“20B] Enhance the visitation granted by the Family Court
in its final judgment dated 31.01.2019 and grant visitation
as prayed as under:

i. grant access and visitation rights to the minor
granddaughter Dhairya Saurabh Dutt for 1 to 2 hours every
day and overnight stay on Saturdays and Sundays at their
place of residence.

ii. grant visitation to make Dhairya participate in
celebrating festivities like Deepawali, Dusehra, Baisakhi,
Holi, etc., our birthdays/marriage anniversary / her birth
day etc., at the place of residence of petitioner-
grandparents.

iii. Grant access to their granddaughter on
telephone/computer (Skype etc.) as and when required.

C] direct the respondent to respect and honour the judiciary
and not cancel the visitation unilaterally or create any
hurdles in implementation of the Court order in its letter and
spirit.”

4. The mother of the child has filed Cross Objection. She has

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challenged the decision dated 31.1.2019 and prayed that the relief
granted by the learned Family Court may be set aside. She has set
out the grounds in justification for the request made in the Cross
Objection.

5. In past certain proceedings with regard to similar relief
have ensued. The details are mentioned in the memo of the Appeal
as well as Cross Objection. At this stage, it is not necessary to
advert to the said details.

6. With regard to compliance of the order/s granting visitation
rights several allegations and counter allegations are made by
both sides.

7. We tried to take opportunity of interacting with the child.
However, in light of the reply by the mother of the child, it could
not materialized. Thus, at this stage, we do not have benefit of
interaction with the child and to know her reaction to this entire
situation.

8. Having regard to the facts and circumstances which appear
from the pleadings and from the order as well as from the fact that
the said final order is challenged by both sides and also having
regard to the fact that, (a) the divorce petition (filed by the father
of the child) is pending; (b) in the said divorce proceedings, the
husband has, by means of separate application, prayed (for
himself) visitation hours/days with the child; (c) with regard to the
interim order which was passed by learned Family Court during
the pendency of Civil Misc. Application No.101 of 2016, certain

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execution application filed by the grand-parents (i.e. the
appellants) is also pending; and (d) the fact that the appellants
have raised grievance about the place fixed by trial Court for
visiting the child on the ground of distance and infrastructure /
place, we pass following order:-

[a] The Appeal and the Cross Objections are ADMITTED.

[b] So far as issue with regard to interim relief is concerned, in
light of the facts and circumstances of the case, we are of the view
that during pendency of the Appeal and Cross Objections, there is
no need or justification to modify/enhance the visitation hours.

Therefore, so far as direction contained in para No.4 of final order
is concerned, we do not make any alteration/modification at this
stage.

We, however, clarify that this order can be reviewed at later stage
during pendency of the Appeal, if such circumstances are made
out by either side in appropriate application.

[c] So far as place for visiting the child by grand-parents is
concerned, in para No.3 of the order it is stated that grand parents
can meet the child at Mediation Centre of learned Family Court
during the time and on the date mentioned in para No.2 of the
order. As mentioned above, the appellants have made grievance
with regard to place.

We find the said grievance justified. Therefore, we consider it

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appropriate to change the place of visit by grandparents with the
child from Mediation Centre, Family Court to Mediation Centre,
Gujarat High Court.

Other directions shall remain the same.

Sd/- Sd/-
(K. M. Thaker,J.) (Sangeeta K. Vishen,J.)”

4. After a gap of about 2 years, when the matter was again listed

before this Court after adjournments on several occasions, in the

meanwhile the matter was referred also to the Mediation Center for

exploring the possibility of settlement by a Coordinate Bench on

13.9.2019. But that effort failed and the matter again was listed before us

on 26.3.2021, when again the following order was passed for exploring

such possibility of an amicable settlement of the dispute regarding

custody of the minor child ‘Dhairya’ :

“1. After having conversation with the parties namely, Lt.
Col. Iqbal Bahadur Dutt (Retired), Lt. Col. Saurabh Dutt
(Husband), Dr. Ann S. Michael (Wife), Ms. Dhairya
(Daughter aged 9 years) and Mr. Makbul I. Mansuri Mr.
Shailesh Ahir, learned Counsels appearing for the Wife, we consider
it appropriate and expedient to pass the following interim Order in
supersession of the earlier Orders passed for the Visitation
Rights in the present Matrimonial Dispute case.

2. Dr. Ann S. Michael, mother of child Dhairya who has the

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present custody of the said child has agreed to take the girl child in
the supervision of Mr. Shailesh Ahir, learned Advocate (Mobile
Number 98985 43386) to the residence of Lt. Col. Iqbal Bahadur
Dutt (Father-in-Law) on 12.4.2021 (Birthday of Dhairya) in the
evening hours around 5.00 pm and Lt. Col. Saurabh Dutt
(Husband) has also agreed to come over from his place of posting
at Bareli to Ahmedabad to meet his daughter Dhairya on
her Birthday i.e. on 12th April, 2021 in the evening hours and,
therefore, the said meeting of Lt. Col. Saurabh Dutt other
grandparents as well as great grandmother with the Dr. Ann S.
Michael (Wife) and Daughter Dhairya in the supervision of
Mr. Shailesh Ahir, learned Advocate will take place at the
residential premises of Lt. Col. Iqbal Bahadur Dutt at the address
which will be supplied or communicated to Mr. Shailesh Ahir and
Dr. Ann S. Michael also well in advance.

3. The said meeting should take place in congenial friendly
atmosphere at least for approximately 2-3 hours.

4. We further consider it expedient and therefore direct to
allow one more such meeting on the next date i.e. on
13.4.2021 also, which is a Public Holiday on account of
Chetichand at Ellisbridge Gymkhana, Ahmedabad as suggested
by the parties between 11.00 am and 2.00 pm in the same manner.

5. We direct and request the parties to maintain decorum,
peace and a congenial atmosphere for the said meeting of the child
Dhairya with all family members on parental side, father,
grandparents and great-grandmother and the parties must

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avoid any acrimonious exchanges of words or gestures. This
is considered necessary for the soothing psychological impact on
the child and to avoid any untoward behaviour on the part of any
of the parties.

6. Mr. Shailesh Ahir, learned Advocate / Witness of these
meetings will submit a separate Report to this Court after both the
meetings are over on 12.4.2021 and 13.4.2021.

7. After the said meetings take place and a Report from the
learned Advocate Mr. Shailesh Ahir is received by this Court,
further appropriate Orders will be passed in the matter on the
next date of hearing, which is fixed on 19.4.2021 @ 2.30
pm and the parties may again join the meeting through Video
Conferencing, alongwith their Counsels.

Sd/- Sd/-
(Dr. Vineet Kothari,J.) (Biren Vaishnav,J.)”

5. Though a meeting took place at the residential place of the

Respondent – Dr. Ann S. Dutt on 12.4.2021 but that meeting miserably

failed as the child did not respond at all and was not willing to meet the

grandfather – Lieutenant Colonel Iqbal Bahadur Tegh Bahadur Dutt and

her own father Major Saurabh, who visited the residential house of

Respondent – Dr. Ann S. Dutt. The said meeting on the birthday of the

child ‘Dhairya’ having failed, the Court again held a video meeting

with the family members on 22.6.2021 and the Court, after hearing the

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concerned parties and their concerned Advocates, passed the following

orders :

“In pursuance of the last order, we had a virtual meeting with the
parties namely, Lt. Col. Iqbal Bahadur Dutt (Retired), Dr. Ann S.
Michael (Wife), Ms. Dhairya (Daughter, Aged 9 years) and Mr.
Makbul I. Mansuri Mr. Shailesh Ahir, learned Counsel appearing
for the Wife. The child (Dhairya) has expressed her view very firmly
and with little anger also that she is not interested in meeting any
member of the family of her parental side, father, grandfather or
grandmother or even mother of the grandfather who is in
advanced age. The Court was making some efforts for last few
hearings to allow such meeting of the child with the father and
grandparents. One such meeting at the residence of the mother Dr.
Ann S. Michael (in place of a third place which was originally
scheduled to be held viz. Ellis Bridge Gymkhana, Ahmedabad) took
place briefly, but no fruitful conversation took place, as the child
Dhairya was not mentally ready to talk to her father and
grandfather.

In view of that unfruitful visit of the father and grandfather at the
place of mother Dr. Ann S. Michael and today’s conversation with
the child by both of us on the virtual platform, we are of the
opinion that any such further effort of arranging any meeting of
the child with the paternal side members of the family may not be
in the interest particularly her mental state and psychology of the
child at present. Therefore, we are left with no option but now to
hear the present Appeal in custody matter on its own merits. The
Appellant grandfather – Lt. Col. Iqbal Bahadur Dutt (Retired) is

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appearing as Party-in-Person, whereas Respondent – Dr. Ann S.
Michael (Mother) has engaged Mr. Makbul I. Mansuri as her
Advocate to appear in the matter. The Appeal may be listed for
Final Hearing on 20.07.2021 at 2.30 p.m.

Sd/- Sd/-

(Dr. Vineet Kothari,J.) (B. N. Karia,J.)”

6. In view of the possibility of the amicable settlement for visitation

having failed, the Court heard the matter on its own merits at length on

20.7.2021.

7. The Appellant – Lieutenant Colonel Iqbal Bahadur Tegh Bahadr

Dutt argued the case personally as Party-in-Person, while the Respondent

– Dr.Ann S. Dutt was represented by the learned counsels Mr. Makbul I.

Mansuri and Mr.Shailesh M. Ahir.

8. The Appellant vehemently submitted before us that the girl child

‘Dhairya’, aged 9-10 years now, is not being given proper care, while

she is in the custody of her mother – Respondent (Dr.Ann S. Dutt), a

Dentist Doctor who has her own profession to look-after and, therefore,

being busy, she cannot give full time and attention to the minor child

‘Dhairya’, whose father and their son Major Saurabh, a decorated Army

Official is mostly out of Ahmedabad and, therefore, the Appellants

consider it their duty and moral obligation to bring up the child as per the

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family traditions in a decent manner, but the Respondent has poisoned her

mind so much that despite all efforts made by the Appellants – parents

and father of the child, Major Saurabh and even this Court to strike a

cordial note with her despite the matrimonial dispute (Divorce case) with

Respondent – Dr.Ann S. Dutt being pending, the child has not responded

to them properly or at all in a positive manner. He urged that both the

grandparents are highly qualified people and the Appellant No.2 –

Mrs.Sandhya Iqbal Bahadur Dutt is herself a Teacher in a primary school.

Therefore, the up-bringing of the child can definitely be carried out in a

much better manner in their hands and financially they are well-off

enough to take care of her interest. Therefore, the Respondent – Dr.Ann

S. Dutt should be directed to allow full visitation rights to the

grandparents and the child may be kept in the custody of the grandparents

by allowing the present First Appeal. The Appellants vehemently

contended that the Respondent – Dr.Ann S. Dutt is constantly violating

the Court’s orders and not allowing such visitation rights and is

deliberately preventing the execution of the visitation rights given to them

by the Family Court and also under the interim orders of this Court and,

therefore, she should be punished under the Contempt Law.

9. Per contra, Mr.Makbul I. Mansuri, learned counsel appearing for

the Respondent – mother (Dr.Ann S. Dutt) vehemently denied all the

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allegations and arguments of the Appellants and submitted that the

Respondent – Dr.Ann S. Dutt is also a highly qualified person being a

Dentist and besides her profession, she is taking very good care of the

child ‘Dhairya’, who is mentally and emotionally fully attached with her

mother and there is no lack of care on her part nor there is any question of

‘poisoning’ her mind or filling her mind with prejudices against her

grandparents or her father. But if the child consistently refuses to meet

them and even cries if insisted upon, she cannot help and she cannot push

the child beyond a limit, who is now about 9-10 years of age and fully

understands the situation of the matrimonial discord between her parents

and in view of the matrimonial dispute and acrimony between the two

families, she cannot be held to be guilty of any deliberate disobedience of

directions of the Family Court or this Court and whenever the Court has

asked her to allow the Appellants to meet the child, she has arranged such

meeting and has taken the child to the directed place and on 12.4.2021,

even at her own house, she was available to allow such meeting of the

grandfather and the father Major Saurabh Dutt at her own residence and

even offered cup of tea and snacks to them but if the child ‘Dhairya’

refused to go to them and receive their affection or blessings given on her

birth-day on 12th April, , it was for the grandparents and the father to

persuade her to come to them. But they failed to do so and in a rush, left

the place after few minutes observing that there is no point in “wasting

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the time”. He submitted such a rude attitude even caused a psychological

negative impact on the child during the said the last meeting and,

therefore, the Court should pass appropriate directions in the best interest

of welfare of the child. He urged that in the absence of any deliberate

disobedience on the part of Respondent to comply with the directions of

this Court regarding visitation, no contempt is made out. On the other

hand, her Cross-Objections deserve to be allowed.

10. We have heard the parties at length and perused the record. We

ourselves held 2 or 3 video meetings in this matter including the meeting

with the girl child ‘Dhairya’ herself with her mother from their residence

and Appellant – grandfather (and also father Major Saurabh Dutt on one

occasion.)

11. We are of the considered opinion that the welfare of the child is an

overriding consideration for the Court in such matters of visitation rights.

The tender age and psychology of the child cannot be allowed to be

prejudiced or negatively impacted by the cross-fires of allegations and

counter allegations. The matrimonial disputes between the adults is a

complex social problem and the most prejudicially affected persons are

the children born out of such wedlock which broke or developed cracks

in it. The loving parents are the best friends of the children born out of the

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wedlock and if the parents constantly fight, the children always fail to

understand the real cause of the same but are mentally torn by such verbal

and physical fights in front of their eyes. No mathematical measurement

of such negative impact can be jotted down for assessment but it is

certain that children of tender age in such situations carry a permanent

scar on their mind and that is most unfortunate fruit of such fights which

even educated and qualified adults fail to perceive fully and bury their

disputes for the benefit of minor children in their young tender age.

12. In the present case, this Court itself faced the dilemma. On the one

hand, the grandparents whose natural love and affection for the

grandchild cannot be found to be sullied by any ulterior motive or

negative feeling for the child, howsoever harsh the fight between their

own son and daughter-in-law could be and, therefore, their blessings, love

and affection for the grandchild should always be considered to be pure

and natural.

13. On the other hand, the mother of the child, one of the parties to the

matrimonial dispute with her husband, is also torn between the two. For

her own reasons, she might be in a disarray of relationship with her

husband which we are not required to go into in detail in the present

Appeal pertaining to visitation rights of the grandparents only and on the

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other hand, her emotional bondage and duty to take care of her own girl

child ‘Dhairya’ cannot be over emphasized. There is nothing on record

either in documentary form or otherwise which could establish in any

manner that the Respondent – mother – Dr.Ann S. Dutt is unable to take

good care of the child ‘Dhairya’ aged 9-10 years.

14. After making our best efforts for amicable settlement with 2 or 3

video meetings and even directing the physical meeting between the

grandparents, father and child, which took place at the residence of the

Respondent – mother, the result of that was found to be without any

positive development and, therefore, in our last order dated 22.6.2021, we

had to stop the visitation rights of the grandparents and father in the best

interest of the girl child ‘Dhairya’.

15. The aforesaid dilemma continues even now.

16. We are, therefore, of the considered opinion that such matters are

not resolved by any kind of directions and compulsory meetings by

giving visitation rights to the parents or grandparents even appreciating

their earnest and natural desire to shower their love and affection, care

and blessings to the grandchild nor we can force the Respondent – mother

– Dr.Ann S. Dutt by a mandamus to make her child meet the

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grandparents on the given dates or on a specified periods contrary to her

own desire. The child herself being a minor but her tender age of 9 years

only, she cannot be subjected to any mandamus directions of this Court.

Such problems are best resolved by the own volition of the parties

concerned or the family members and above all, the child herself. Since

the child ‘Dhairya’ presently is only 9 years, in our considered opinion,

we feel that no mandamus direction can be given to the Respondent –

mother – Dr.Ann S. Dutt or the child ‘Dhairya’ at this stage, per force

of the Court’s order, to meet the grandparents or father Major Saurabh

Dutt.

17. We also do not find any ground to take cognizance or punish the

Respondent – mother – Dr.Ann S. Dutt under Contempt Law as argued

by Appellants.

18. We express our respect for the feelings and stature of the

grandfather and the father as they both are Army Personnel, the

grandfather a retired Lieutenant Colonel and father a serving Major and

we definitely hope and expect that they belong to a very disciplined and

educated background and the grandmother is also a Teacher in the school.

Therefore, possibly no harm can be caused to the child if the child visits

them or is given in a temporary custody of the grandparents. But, we are

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afraid, we cannot do that by a mandamus as no force in such matters

would yield good results for the child herself, there being no dispute for

both the sides themselves that they want the best interest of the child to

be protected and safeguarded.

19. Therefore, we are unable to grant any visitation rights to the

Appellants at this stage, at least till the girl child ‘Dhairya’ attains

majority, which as per her birth-date 12.4.2012 she will be achieving on

12.4.2030. After her achieving the adult age, she would be free to decide

on her own whether to meet her father and grandparents. For the interim

period till her adulthood, we leave it free for the Appellants –

grandparents and father to make their friendly efforts through convenient

time phone calls or emails, for seeking the cooperation of the Respondent

– mother – Mrs.Ann S. Dutt and if the girl child ‘Dhairya’ gives her

willing consent to meet the grandparents or the great grandmother even

for a few minutes, we would express our desire and hope that the

Respondent – mother – Dr.Ann S. Dutt will cooperate and take suitable

steps for meeting of ‘Dhairya’ with the grandparents and great

grandmother on a few occasions, say on Festivals. Since the Respondent

– mother is a qualified person being a Dentist Doctor, we hope and expect

that keeping aside her matrimonial dispute with her husband Major

Saurabh Dutt, she will also appreciate the natural desire of the

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grandparents to meet their granddaughter ‘Dhairya’. But as indicated

above, no force or mandamus direction of the Court can be given for the

same.

20. In somewhat similar circumstances, we have taken a similar view

as aforesaid in another case in First Appeal No.3019 of 2018 (Suryakant

S/o Banjrang Lal Goel v. Richa D/o Shambhulal Agrawal) decided on

9.7.2021, in which the biological father living in Canada wanted to have

continued visitation / talking rights with his daughter, aged 13 years,

who was living with her mother, who re-married with another person and

was living in Ambaji, Gujarat and after obtaining a Report from a Child

Psychologist, we considered it appropriate to suspend those visitation /

talking rights given to the biological father living in Canada till the

minor girl child “Rashi’ achieved her adulthood. Relevant Para.4 to 7

of that judgment rendered recently by us are also quoted below for ready

reference :

“4. We also requested Ms.Richa, now married to Mr.Lakshman
Agrawal and Ms.Rashi to join this meeting as we could not
readily get into contact with Appellant Mr.Suryakant Goel as he
lives in Canada through video meeting today and briefly
interacted with them. After discussion with learned counsel also
and aforesaid interaction with Ms.Richa and Ms.Rashi and both

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learned counsel appearing on behalf of the parties all of them
fairly agreed with the proposed order which we indicated to all
the parties and learned counsel in the video meeting. This
meeting, the other counsels appearing in other cases in our Board
were kept in the Waiting Hall.

5. Upon perusal of the Report of Dr. Khushnuma Banaji,
Clinical Psychologist, interaction in the Court with Ms.Richa and
Ms.Rashi and both the learned counsels, we are of the considered
opinion that for the present, the visitation / talking rights given to
the biological father of the child Ms.Rashi of Mr.Suryakant Goel
need not continue, as it may have adverse psychological effect on
the child Ms.Rashi who is of tender age now but she appeared to
be having clear and sufficient understanding of the life as she
told that she is presently in 9th standard only but want to become
Scientist and intends to join NASA. The said girl RASHI is now
proceedings towards her adulthood and we, advisedly, do not
think it proper to disturb her equilibrium or peace of mind as well
as the present family of Ms.Richa who is living with her husband
Mr.Lakshman Agrawal at Ambaji happily with other two children
of Mr.Lakshman Agrawal from his previous wife.

6. The family overall appears to be in happiness and good
financial condition. Therefore, the welfare of child Ms.Rashi can
very well be taken care by the present family where she is living.

7. Accordingly, we dispose of this Appeal itself and connected
Civil Applications by removing the part of the order of the
Family Court below quoted above (Para F) with regard to the

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visitation / talking rights given to the biological father
Mr.Suryakant Goel. The said position will continue and we leave
it absolutely to the discretion of the child Ms.Rashi who, after
becoming the major viz. achieving the age of 18 years, may take
her own voluntary decision about having talking terms or
connecting in any other manner with the Appellant Mr.Suryakant
Goel, Canada and we may make it clear that no force of
whatever nature shall be put on the said child Ms.Rashi in any
manner for the said purpose.”

21. Therefore, leaving the scope for amicable settlement for visitation

still open to the parties, we dispose of the present First Appeal, connected

Civil Applications, Misc. Civil Applications and Cross-Objections

accordingly, with no order as to costs.

(DR. VINEET KOTHARI,J)

(B.N. KARIA, J)
V.J. SATWARA

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