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Sayed Anis Ahmed vs Imran Anwar Hussain Dafedar on 1 November, 2018

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Shailaja

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION [STAMP] NO. 31404 OF 2018

Sayyed Anis Ahmed ] Petitioner
Vs.
Imran Anwar Hussain Dafedar ] Respondent

…..
Mr. Gaurav Bhavnani, for Petitioner.
…..

CORAM : R.G. KETKAR, J.

DATE : 1st NOVEMBER, 2018.

P.C.

Not on board. At the request of Mr. Bhavnani, taken up for
admission.

2. Heard Mr. Bhavnani, learned Counsel for the petitioner.

3. Leave to amend so as to annex order dated 24 th October, 2018 is
granted. Amendment shall be carried out forthwith.

4. By this Petition under Article 227 of the Constitution of India, the
petitioner-maternal grandfather of Ayan aged about 8 and ½ years and Sufiya
aged about 6 and ½ years has challenged the order dated 24th October, 2018
passed by the learned Judge, Family Court No.5, Mumbai below Exhibit 41 in
Petition No. D-26 of 2013. By that order, the learned Judge allowed the
application made by the respondent herein in the following terms;

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“2. The petitioner [respondent herein] is entitled to get
overnight access of both the children from 3.00 pm of
3.11.2018 to 3.00 p.m of 9.11.2018.

3. The respondent [petitioner herein] shall handover custody of
the children to petitioner [respondent herein] before the
marriage counsellor Smt. S.B. Pujar/Shri R.R. Kotwal at 3.00
p.m on 03.11.2011.

4. The petitioner [respondent herein] shall handover the
custody of the children to the respondent [petitioner herein]
on 09.11.2018 at 3.00 p.m in an Inorbit Mall, Malad (West),
Mumbai.

5. The petitioner [respondent herein] shall take proper care of
the children’s health, food etc.”.

5. In support of this Petition, Mr. Bhavnani strenuously contended
that the learned Judge, having regard to the fact that the respondent was
prosecuted for committing murder of his wife, was not justified in allowing the
application. He submitted that aggrieved by that order of acquittal, the
petitioner has preferred appeal before this Court. He submitted that till date
the respondent has not taken overnight access. He submitted that while
passing the impugned order, the learned trial Judge did not consider welfare of
the children. The learned trial Judge did not interact with the children before
passing the impugned order. In support of this submission, he relied on the
following decisions;

[1] Anirudha Herwadkar Vs. Namita Herwadkar, (2017) 6
AIR Bom R 241.

[2] Nil Ratan Kundu and another Vs. Abhijit Kundu, (2008) 9
Supreme Court Cases 413.

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6. I have considered submissions advanced by Mr. Bhavnani. I have
also perused the material on record. In paragraph 5, the learned trial Judge
recorded the submissions advanced on behalf of the respondent that he is
getting regular access of the children. The children are aware about relation
with the respondent. The respondent is biological father of the children Ayan
and Sufiya. The respondent was getting regular access in Child Care Center of
Family Court, Mumbai. It was submitted on behalf of the respondent that he
did not get overnight access till date. The case pending against him in Session
Court is disposed of on merits. The respondent and his relatives have been
acquitted from the criminal case.

7. In paragraph 6, the learned trial Judge recorded the submission of
the petitioner herein to the effect that the respondent is guilty of killing his
wife though he has been acquitted by the sessions Court. The petitioner has
preferred appeal against the acquittal of the respondent and the same is
pending in this Court. Till date the respondent has not taken overnight access
and, therefore, it was submitted that the application may be dismissed.

8. In paragraph 7, the learned Judge considered the judgment of the
Sessions Court in Case No.100 of 2012 which was produced along with list
Exhibit 46. The learned Judge noted that the appeal preferred by the petitioner
is pending before this Court. The learned Judge thereafter recorded that
initially the access of both the children has been granted to the respondent in
Child Care Center and thereafter in Inorbit Mall, Malad (West), Mumbai. Thus,
children know the respondent as their father. Earlier, the respondent did not
take overnight access and the application is made for overnight access. The
learned trial Judge observed that welfare of the children is that they must
know their biological father, paternal grand parents and relatives of the
respondent. If overnight access is not granted then it creates obstruction to

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enhance rapport between father and children and grand parents. It is also
settled law that the children must get love and affection from father and grand
parents. Considering welfare of the children, it is necessary to grant overnight
access to the father of the children.

9. In paragraph 8, the learned trial Judge recorded that if overnight
access is granted to the respondent, no harm or pressure will be caused to the
petitioner. The learned trial Judge further observed that even no damage will
be caused to the petitioner if overnight access is granted to the respondent. In
paragraph 9, the learned trial Judge considered the school notice of Diwali
Vacation which shows that the children have examination till 2nd November,
2018 and there is spare day on 3 rd November, 2018. This shows that the
children have Diwali Vacation from 3rd November, 2018 to 18th November,
2018. Accordingly, the learned trial Judge granted overnight access of both the
children from 3rd November, 2018 at 3.00 p.m to 9th November, 2018 at 3.00
p.m and issued other directions.

10. Mr. Bhavnani relied on the decision of this Court in Anirudha
Herwadkar (supra). A perusal of that decision shows that in paragraphs 9 to
11, the learned Single Judge of this Court has referred to the medico-legal
certificates dated 28th January, 2017 and 18 th February, 2017 in respect of
minor child Ms. Janhavi. Upon considering these certificates, the learned
Single Judge noted that child was found to be physically injured at the time of
her medical examination.

11. In the present case, as noted earlier, the learned Judge has
recorded that no harm will be caused if overnight access is given to the
respondent. In view thereof, decision in Anirudha Herwadkar’s case (supra)
is not applicable. Mr. Bhavnani also relied on the decision of Nil Ratan Kundu

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(supra). In that case, the Apex Court was considering section 17 of the
Guardians and Wards Act, 1890 as regards appointment of guardian. In the
present case, the impugned order grants overnight access, that too, for a
limited period from 3rd November, 2018 to 9th November, 2018.

12. In view thereof, no case is made out for interfering with the
impugned order by invoking powers under Article 227 of the Constitution of
India. Hence, the Petition fails and the same is dismissed.

[R.G. KETKAR, J.]

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