Bombay High Court
Dr. Dhiraj S/O Ramshankarji Gupta vs Dr. Radhika W/O Dr. Dhiraj Gupta @ ... on 19 June, 2021
Bench: A.S. Chandurkar, Pushpa V. Ganediwala
CAO 359.2021 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION (CAO) NO. 359 OF 2021
IN FAMILY COURT APPEAL NO. 42 OF 2018 (D)
(Dr. Dhiraj s/o Ramshankarji Gupta, Nagpur Vs. Dr. Radhika (Dr. Reshma T. Inamdar),
Nagpur)
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Shri J.M. Gandhi, Advocate for the appellant.
Shri A.A. Naik, Advocate for the applicant/
respondent.
.....
CORAM : A.S. CHANDURKAR &
PUSHPA V. GANEDIWALA, JJ.
JUNE 19, 2021.
Heard.
2. This is an application filed on behalf of
the applicant - mother seeking custody of her child,
by name Raajveer, in terms of access and visitation
rights granted by this Court vide judgment and
decree dated 26/07/2018.
3. We have heard Shri Gandhi, learned
counsel for the appellant - father, and Shri Naik,
learned counsel for the applicant/ respondent -
mother.
4. It is not disputed that despite the final
judgment and decree dated 26/07/2018, this Court,
from time to time, passed certain orders with regard
to the custody and access of the child, depending
upon the situation.
5. It is worthwhile to mention here that
both the parties are Doctor, by profession, and the
applicant - mother is staying at the United Kingdom,
and occasionally visits India. The applicant - mother,
vide the aforesaid judgment and decree, has been
given the right to take the child to the United
Kingdom twice a year during vacations, and that
during her stay in Nagpur, she has been given
complete overnight access to her child, subject to the
child attending school with a further rider that if the
period extends beyond fifteen days at a stretch, the
appellant - father be given overnight access to the
child on weekend Saturday and telephonic access.
6. It is the grievance of the applicant -
mother that the appellant - father has not obeyed the
orders passed by this Court from time to time, and
therefore, she was required to approach this Court
for access to her child.
7. Shri Naik, learned counsel for the
applicant - mother, states that the applicant - mother
arrived in India on 19/04/2021, and immediately
sought custody of the child after her mandatory
period of self-isolation was over. The appellant -
father refused vide whats app message dated
21/04/2021. The learned counsel further states that
considering the grim situation at the relevant time,
the applicant - mother thought it prudent to wait for
some time and again wrote to the appellant - father
on 22/05/2021 reiterating her demands for custody,
but the father once again refused by e-mail dated
23/05/2021. The learned counsel strenuously argued
to handover the custody of the child to the applicant
- mother in terms of the final judgment and decree
dated 26/07/2018.
8. Per contra, the appellant - father, in his
reply, states that at the time of passing of the
aforesaid judgment and decree, the age of the child
was eight years. Now, the child is completing his
eleven years on 28/06/2021, and has become quite
mature, and has developed his own feeling and
wants to live as per his own desire. That the child is
not ready to live with the applicant - mother and
every time, the appellant - father has to force him to
join the applicant - mother and he reluctantly and
with heavy heart goes to the applicant - mother, and
this particular duration puts him in a stressful
situation, which is neither favorable for his physical
nor his mental health.
9. Shri Gandhi, learned counsel for the
appellant - father, reiterated in his submissions the
contents in the reply of the appellant - father.
10. We have considered the submissions
advanced on behalf of both the sides and perused the
record.
11. It is not disputed that considering the
pandemic situation, this Court passed an order on
13/08/2020, when both the parties have arrived at
an amicable settlement for a temporary period. Both
the parties had consented to the following
arrangement :
" (I) The minor child Raajveer shall be in
the custody of the father Dr. Dhiraj
Ramshankarji Gupta from 5.00 p.m. on
Friday in every week and shall return the
child by 5.00 p.m. on every Monday.
(II) The Respondent - Dr. Radhika, mother
of the child shall have the custody of the
minor child Raajveer from 5.00 p.m. on
Monday till 5.00 p.m. on Friday in every
week.
(III) The handing over and taking over of
the minor child Raajveer shall be in
presence of the Registrar (Administration)
of this Court in her chamber. The mode
which was earlier adopted for this purpose
shall continue to operate.
(IV) The parties shall scrupulously follow
the conditions and any breach shall be
seriously viewed to cancel the visitation
rights.
(V) Neither the appellant-husband nor the
respondent-wife shall move the child out of
the jurisdiction of this Court without prior
permission of this Court."
12. Undisputedly, the pandemic situation is
still continuing. It is informed by the learned counsel
for the applicant - mother that she would be staying
in Nagpur till 30/07/2021. It is also informed that
since last ten months, she has no physical access to
her child.
13. We refrain from going into the rival
submissions, and considering the order passed by this
Court on 13/08/2020 which was passed with the
consent of both the parties during pandemic
situation, in our considered view, the arrangements,
made in the said order, with some modification/s,
would be most convenient and beneficial to the child.
We pass the following order :
ORDER
(i) The appellant - father shall handover the
custody of the child to the applicant - mother on
19/06/2021 at 5:00 pm.
(ii) The child shall be in the custody of the
applicant - mother till next Friday, i.e., 25/06/2021
up to 5:00 pm. Thereafter, the arrangement, as
formulated in the order dated 13/08/2020, would
follow.
(iii) The handing over and taking over of the
child shall be in presence of the Registrar
(Administration) of this Court in his chamber. The
mode which was earlier adopted for this purpose
shall continue to operate.
(iv) The appellant - father, after handing
over the custody of the child to the applicant -
mother, shall immediately leave the Court premises.
(v) The next birthday of the child is on
28/06/2021, i.e., on Monday. As per the
arrangement, the child would be in the custody of the
appellant - father till 5:00 pm, and thereafter, the
custody shall be handed over to the applicant -
mother in the presence of the Registrar
(Administration) of this Court.
(vi) During this period, both the applicant -
mother and the appellant - father would have
telephonic access to the child as per the convenience
and mood of the child.
14. The aforesaid order shall operate for a
temporary period, i.e., till the applicant - mother
stays in Nagpur.
15. The parties are at liberty to approach this
Court for modification, if the fact situation so
demands.
16. The Civil Application stands disposed of
accordingly.
(JUDGE) (JUDGE)
Sumit
