Pavan Kumar Jha S/O Shri N.K. Jha vs Sapna Moudgil Jha W/O Shri Pavan ...
2004 Latest Caselaw 1290 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner is aggrieved by an order dated 3rd November, 2004 passed by the learned Additional District Judge in HMA No.411/2002

2. By the impugned order, the learned Additional District Judge directed the Petitioner (husband) to take his minor son Abhinav to McDonald's Restaurant, Sector 18, Noida on 6th November, 2004 at 4.00 pm for the purpose of meeting the Respondent (wife) for two hours till 6.00 pm. Thereafter, at 6.00 pm, the Respondent was to hand over custody of their child to the Petitioner.

3. The learned Additional District Judge further directed that in case the Petitioner fails to bring Abhinav to the aforesaid place at 4.00 pm, then the Respondent may take the assistance of the local police for this purpose. So far as this part of the order is concerned, I think it is ex facie unsustainable. In a delicate matter involving a relationship of this nature, the last thing to do is to involve the police to compel a child to meet his mother. To this extent, therefore, the impugned order is straightaway set aside.

4. When this petition was taken up for preliminary hearing on 5th November, 2004, learned counsel for the Petitioner relied upon a report given in March, 2004 by one Dr. Amit Sen, Consultant Child and Adolescent Psychiatrist who was apparently concerned with the psychiatric assessment and management of Abhinav. Reference was made to his opinion and recommendations. In sum and substance, the opinion of Dr. Sen is that Abhinav had witnessed sexual activity during the second year of his life and continues to have vivid memories of the same. One of the recommendations was that Abhinav should be kept out of the divorce proceedings of his parents and their conflicts as far as possible and he should not be dragged to court unless absolutely necessary. It was also recommended that he should not be forced to maintain or develop a relationship that he cannot tolerate and his consistent refusal to meet his mother should be respected ''for some time to come''

5. In view of the above report, I thought it appropriate to call Dr. Sen to court so that the matter could be discussed with him on 5th November, 2004 itself. However, Dr. Sen was apparently tied up on that date. Consequently, the matter was adjourned to 8th November, 2004 at 2.00 pm on which date Dr. Sen was required to be present in court. In view of the recommendation of Dr. Sen, I did not think it advisable to call Abhinav to court.

6. On 5th November, 2004 learned counsel for the Respondent very fairly stated that his client would not take any steps to meet Abhinav on 6th November, 2004 pursuant to the impugned order .

7. On 8th November, 2004 I had a brief discussion with Dr. Sen in chambers. He had agreed to carry out another evaluation in respect of Abhinav and submit a report by 9th November, 2004 but the Respondent did not seem to have much confidence in him, with the result that this avenue was not pursued. Thereafter, learned counsel for the parties as well as the parties were heard on 8th and 9th November, 2004 when judgment was reserved.

8. Broadly, the facts of the case are that the parties were married on 13th October, 1994 and they began to live in the United States of America. Abhinav was born there on 19th March, 1997. The Respondent is still a resident of the United States. Both the parties are said to be software professionals.

9. According to the Petitioner, the Respondent was carrying on an adulterous relationship with one RT and Abhinav was a witness to their sexual activities in the second year of his childhood. After the Petitioner came to know about the adulterous relationship, he left the United States and came to India some time in May, 1999 along with Abhinav. According to the Petitioner, Abhinav is highly intelligent and has a very good memory and is able to recall events with remarkable clarity.

10. Some time in April, 2002 the Respondent filed a petition for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion. The Petitioner filed an extremely long written statement some time in February, 2003.

11. The admitted position is that prior to the initiation of divorce proceedings, the Respondent met Abhinav on quite a few occasions, at least a couple of times each year whenever she came to India.

12. After the divorce petition was filed, but before the Petitioner filed a written statement, the Respondent had moved an application for permission to meet Abhinav who was then with the Petitioner. On 8th November, 2002 the learned Additional District Judge recorded that it has been agreed between the parties that the Respondent will meet her child at McDonald's Restaurant, Sector 18, Noida between 10.00 am to 12.00 noon on 9th November, 2002. The Respondent appears to have met Abhinav on the scheduled date. According to the Petitioner, he gave his consent because he was tongue tied since he was appearing in person and it was the first time that he was appearing in a court. He says that the order was recorded before he even knew what had happened.

13. Be that as it may, after the written statement was filed, the Respondent moved another application in March, 2003 for permission to meet Abhinav whom she had not met since November, 2002. The Petitioner objected to the application.

14. The objection of the Petitioner was that the child had been ''sexually abused'' by the Respondent. This allegation was sought to be explained with reference to the alleged adulterous relationship that the Respondent is said to have had with RT and the sexual activity witnessed by Abhinav. It was contended that this had scarred the mind of Abhinav to such an extent that it would not be in his interest if he were allowed to meet the Respondent.

15. On 24th March, 2003, the learned Additional District Judge hearing the matter passed a rather detailed order after meeting Abhinav.

16. What went on in the mind of the learned Additional District Judge is best stated in her own words. This is what the learned Additional District Judge has said:-

''The Court was considerably strained when this argument of respondent/father was propounded and before passing any order on the application of wife, the Court thought up it proper to query the child and for this, the child was called in the chamber and he was in the Chamber between 2.05 p.m. up to 2.50 p.m. The Court is satisfied that the child suffers from no such mental trauma and although for the initial 10 minutes, the child was very apprehensive and did not go near the petitioner/mother and in fact, he peeked out of the window to see if his waiting father was watching him and after sometime, the child became very affectionate towards his mother and was kissing her and hugging her and promised to meet her at Mec'Donald Restaurant, where the parties had first met. After this initial development with the child in the Chamber, the respondent/father was also called in the Chamber and he was informed of this. The child at that time had been sent outside to his waiting grand parents. The respondent/father is still very hesitant and he does not want the mother to meet the child. I am not inclined to accept this submission of the respondent/father. For the first time in the written statement this version of the sexual abuse of the child qua the mother has been put up; no such argument was propounded before this Court on 8.11.2002 when the parties had by consent agreed to meet the child at Mec'Donald Restaurant.''

17. Thereafter, on a consideration of the facts and circumstances of the case, the learned Additional District Judge permitted the Respondent to meet Abhinav between 10.00 am and 12.30 pm at McDonald's Restaurant. The Respondent could be accompanied by her sister whom Abhinav was very keen to meet, as told by him to the learned Additional District Judge, and who also wanted to meet Abhinav.

18. Significantly, the learned Additional District Judge also noted that Abhinav had stated that he would like to meet the Respondent again and in this view of the matter, after the meeting on 29th March, 2003, the Petitioner was directed to bring Abhinav on 4th April, 2003 at 4.30 pm, after school hours, to McDonald's Restaurant where the Respondent could interact with Abhinav.

19. On 5th April, 2003, the learned Additional District Judge recorded the statement of the Respondent to the effect that the order dated 24th March, 2003 has been complied with and that she was able to meet Abhinav on 29th March, 2003 and 4th April, 2003 The Petitioner also confirmed this.

20. Thereafter, in July, 2003 the Respondent moved another application to have interim custody of Abhinav for a couple of days since she was again visiting India. The Petitioner opposed this application. While doing so, the Petitioner relied upon a letter from Dr. Amit Sen addressed to the Petitioner wherein he had been advised not to send Abhinav to court and to temporarily suspend his relationship with his mother.

21. The learned Additional District Judge passed the following order on 14th July, 2003:-

''I fully agree with this submission of ld. Counsel for the applicant/wife. The record has been perused. The speaking order dated 24.3.2003 passed by this Court has also been perused. The child is about 6 years of age. The Court had met the child before assessing the order dated 24.3.2003 and the Court was satisfied that the child had no mental trauma and after an initial hesitation, he became very affectionate towards his mother and was kissing and hugging her and it was in those circumstances, that the applicant/wife had been permitted to take interim custody of the child from 29.3.2003 up to 4.4.2003. Today the child has not been brought by the non applicant/father. It is stated that he is not well. Even in the reply filed today, it has nowhere been stated by the non applicant/husband that the child was not comfortable with his mother between 29.3.2003 up to 4.4.2003. It is informed by the applicant/mother that the child was very happy with her In the circumstances of this case, I permit the applicant/mother to take interim custody of the child on the following two weekends i.e. weekend falling on 18th July up to 20th July, 2003 and weekend falling on 25th July to 27th July, 2003. The applicant/mother will take the child from the house of the non applicant/husband on 18th July, 2003 and 25th July, 2003 at 4 p.m. respectively and will drop the child back at the residence of the non applicant/husband on 20th July, 2003 and 27th July, 2003 latest by 7 p.m. respectively in the evening. The non applicant/husband will ensure that the child is handed over to the mother peacefully and the order is complied with in its true letter and spirit.''

22. The learned Additional District Judge also noted, in an earlier part of the order, the submission of learned counsel for the Respondent that the letter given by Dr. Sen was based on the history of Abhinav given to him by the Petitioner.

23. The order dated 14th July, 2003 passed by the learned Additional District Judge was sought to be revised by the Petitioner by filing CR No.773/2003.

24. A learned Single Judge of this Court heard the parties in the revision petition on 18th July, 2003. The learned Single Judge talked to the parties in chambers and thereafter concluded that it would be in the interest of Abhinav to modify the order dated 14th July, 2003 so as to curtail the period of interim custody. The learned Single Judge directed that the Respondent would pick up Abhinav on 19th, 20th, 26th and 27th July, 2003 between 8.00 am and 9.00 am from the house of the Petitioner and the petitioner would take back Abhinav to his house in the evening between 5.00 pm and 6.00 pm. With this modification, the revision petition was disposed of.

25. It appears that on 19th and 20th July, 2003 the Respondent could not meet Abhinav. According to the Respondent, she was not allowed to meet Abhinav, but according to the Petitioner, Abhinav did not want to meet the Respondent. I need not enter into this controversy because in any case, on 26th July, 2004 Abhinav was brought to court and he met the Respondent for about two hours in the lounge of the High Court. The learned Single Judge recorded in the order sheet of 26th July, 2003 that Abhinav was not very keen and willing to spend time with the Respondent. It was, nevertheless, ordered that the Petitioner would take Abhinav to McDonald's Restaurant in Noida on 27th and 30th July, 2003 between 5.00 pm and 6.00 pm to meet the Respondent, since she was leaving India on 31st July, 2003. It is not very clear whether this order was or was not complied with by the parties.

26. Some time in September, 2003, the Respondent again came to India and moved an application for permission to meet Abhinav. The Petitioner opposed this application also. By an order dated 9th October, 2003, the learned Additional District Judge did not think it appropriate to permit Abhinav to live with the Respondent for two or three days as prayed by her, but she was allowed to meet him for an hour on 11th and 12th October, 2003 at McDonald's Restaurant between 5.00 pm and 6.00 pm.

27. Learned counsel for the parties are in agreement that this order was not implemented. According to the Petitioner, Abhinav did not want to meet the Respondent but according to the Respondent, Abhinav was prevented from meeting her. Whatever be the truth, it is common ground that after the last meeting in July, 2003, the Respondent has not had any occasion to meet Abhinav in spite of orders passed by the learned Additional District Judge on 9th October, 2003 (already mentioned above), 17th November, 2003 and 18th March, 2004.

28. It was argued by learned counsel for the Petitioner, as well as the Petitioner, that the meetings between Abhinav and his mother have a rather deleterious and traumatic effect on Abhinav. It was submitted that memories of the events that had occurred in the United States and which are said to have been witnessed by Abhinav get revived and this has an adverse impact on Abhinav. It was submitted that under these circumstances there should not be any contact, at least for the time being, between Abhinav and Respondent.

29. Learned counsel for the Petitioner also placed reliance on the report of Dr. Amit Sen, particularly the opinion given by him that Abhinav had certainly witnessed sexual activity during the second year of his life and continues to have vivid memories thereof. Attention was also drawn to a passage in the report wherein the doctor noted that in the therapy sessions, Abhinav expressed strong feelings of anger and hostility towards his mother and consistently maintained right through the therapy that he did not want any contact with her. Reference was also made to the recommendation of the doctor that Abhinav's consistent refusal to meet his mother should be respected ''for some time to come"

30. It was further submitted that since Abhinav himself was not willing to meet the Respondent, he should not be compelled to do so as it would not be in the interest of the child and would lead to further complications.

31. On the other hand, it was submitted by learned counsel for the Respondent as well as by the Respondent, relying on various passages in the written statement filed by the Petitioner, that from some time in October, 1997 onwards till the Petitioner and Abhinav left the United States in May, 1999, the Petitioner was either working from home or his parents were living with them. It was submitted that it was highly unlikely that during this period, the Respondent could have indulged in an adulterous relationship in the matrimonial home, as alleged. It was submitted that even assuming Abhinav had witnessed any sexual activity in his second year, he could not have remembered it for such a long time and so vividly, as is sought to be made out. It was submitted that infantile amnesia makes children forget events and that the Petitioner had perhaps been tutoring Abhinav to believe that some events had occurred, which in fact did not occur. It was also submitted that prior to the litigation between the parties, the Respondent had been meeting Abhinav without any objection from the Petitioner and even during the pendency of the litigation, she had met Abhinav and there was nothing to suggest, except for the report of Dr. Sen and the word of the Petitioner, that the meetings between the Respondent and Abhinav traumatized Abhinav. It was submitted that there was nothing wrong in permitting the Respondent, who was after all the mother of Abhinav, to meet him and that it was highly improbable that she would have indulged in any sexual activity in the presence of Abhinav.

32. Learned counsel for the Petitioner sought to explain ''sexual abuse'', as alleged by him, by relying upon Gale Encyclopedia of Psychology where, in a chapter on Sexual Abuse by Margaret Alic, sexual abuse has been described as ''any sexual act or sexual exposure that is not consensual or that occurs between a child and an older individual.'' It has been explained, further in this article, that in general, any sexual experience or exposure that occurs between a child and an older child, an adolescent, or an adult, for the gratification of the older individual, is considered to be sexual abuse. The Petitioner has not set up sexual abuse of this kind. There is nothing to suggest, even remotely, that Abhinav has had any non-consensual sexual act or sexual exposure with an older individual for the gratification of the older individual.

33. Reliance was also placed by learned counsel for the Petitioner on a document apparently obtained from the American Academy of Pediatrics wherein the Committee on Child Abuse and Neglect has defined ''sexual abuse'' in the following terms:-

''Sexual abuse occurs when a child is engaged in sexual activities that the child cannot comprehend, for which the child is developmentally unprepared and cannot give consent, and/or that violate the law or social taboos of society. The sexual activities may include all forms of oral-genital, genital, or anal contact by or to the child, or non-touching abuses, such as exhibitionism, voyeurism, or using the child in the production of pornography. Sexual abuse includes a spectrum of activities ranging from rape to physically less intrusive sexual abuse."

34. The contention of learned counsel for the Petitioner was that the Respondent had indulged in exhibitionism, which amounts to sexual abuse of the child. Again, the Petitioner has taken the definition totally out of context. It clearly begins with the words ''Sexual abuse occurs when a child is engaged in sexual activities ?'' (emphasis mine). Such sexual activities include exhibitionism. There is nothing to suggest, nor is there any allegation in this regard that Abhinav was engaged in sexual activities- at best he was only a witness to sexual activity, but was not engaged in it; Abhinav was only two years old at that time. Therefore, I do not see how the Petitioner can rely upon this definition to support his argument that his mother sexually abused Ahinav.

35. Having heard both the parties as well as their learned counsel for a considerable length of time, I am of the view that the facts of the case prima facie disclose that the reaction of the Petitioner seems to be a little exaggerated.

36. There is no doubt that between May, 1999 when the Petitioner and Abhinav came to India and prior to the commencement of litigation between the parties, the Respondent had met Abhinav on quite a few occasions. There is nothing on the record to suggest that the meetings had any debilitating or traumatic effect on Abhinav. On the contrary, the order dated 24th March, 2003 passed by the learned Additional District Judge suggests otherwise. According to the Petitioner, the meetings (both before the litigation and during its pendency) did have a severely adverse impact on Abhinav and he did mention this on more than one occasion to persons within the family, but he and his family always felt that they would be able to tackle the situation. Unfortunately, when they found that they could not do so, they had no option but to take the services of a professional psychiatrist such as Dr. Sen.

37. The Petitioner has not placed anything on record to suggest that if the meetings had traumatized Abhinav, he had informed the Respondent about the events or had advised her to refrain from meeting Abhinav in the best interests of the child. It is not the case of the Petitioner that the Respondent has any ill feelings or any malice towards Abhinav or is otherwise not favorably disposed towards him or is not a loving mother. This being so, if one proceeds on the basis that the Respondent cared for an loved her child, the natural conclusion would be that if it had been brought to her notice that her meetings with Abhinav traumatized him, she would have (in all probability) voluntarily refrained from meeting Abhinav. But, the Petitioner gave no such suggestion or advice to the Respondent even though he undoubtedly had the best interests of Abhinav at heart. Therefore, it appears that the trauma said to be caused to Abhinav by meeting his mother is perhaps less real than is made out to be. In the absence of any cogent material on record, other than the experiences of the Petitioner, which he apparently kept to himself without sharing it with the Respondent, leads me to believe that the meetings between Abhinav and the Respondent did not have the kind of traumatic impact as made out by the Petitioner.

38. There is no doubt that the meetings between Abhinav and the Respondent have been somewhat infrequent and by and large for a limited period of time. It is, therefore, quite natural for Abhinav to initially be a little hesitant when meeting his mother. But as pointed out by the learned Additional District Judge in her order dated 24th March, 2003 once Abhinav was free with his mother, his natural love and affection for her took over.

39. During the pendency of the litigation, Abhinav has met the Respondent on several occasions, such as on 9th November, 2002, 24th and 29th March, 2003, 4th April, 2003, 26th and perhaps on 27th and 30th July, 2003. None of these meetings have reportedly had any traumatic impact on Abhinav except to the extent suggested by the Petitioner. I would expect that if the impact on Abhinav was so severe and immediate as is sought to be made out by the Petitioner, he would have surely brought it to the notice of the Respondent (as mentioned above) and more importantly, to the notice of the court as soon as possible, with a view to ensure that no further meetings take place between Abhinav and the Respondent, at least during the period between 24th March, 2003 and 4th April, 2003 and again between 19th July, 2003 and 30th July, 2003. Under the circumstances, it is a little difficult to give full credence to the statements of the Petitioner.

40. It is true, as pointed out by learned counsel for the Petitioner, that on 26th July, 2003 Abhinav was brought to court and it was recorded by the learned Single Judge that he met the Respondent for about two hours in the lounge of the Delhi High Court but it seemed that Abhinav was not very keen and willing to spend time with the Respondent. Nevertheless, the learned Single Judge ordered on 26th July, 2003 that the Petitioner should take Abhinav to McDonald's Restaurant on 27th July, 2003 for an hour to meet with the Respondent and also on 30th July, 2003 for the same purpose. The learned Single Judge seems to have passed such an order only so as to enable Abhinav and the Respondent build up a mother and child relationship, and get over minor hurdle.

41. Also, if Abhinav was not very keen to meet the Respondent while in the lounge of the Delhi High Court, it is hardly surprising. The court complex is surely not the best place to build endearing relationships. (I am told that the conditions are even worse in the District Courts). Meetings, in circumstances as in the present case, are required to be held in a far more conducive atmosphere away from the court premises. I think the time has now come for the State to make arrangements, in consultation with the courts, to provide appropriate space for estranged couples to meet for mediation and conciliation and where children can meet their parents with a view to build healthy filial relationships. This is a matter that needs to be urgently and seriously addressed by the State, which may also involve respected organizations such as the Justice Sunanda Bhandare Foundation which, I am given to understand, has done commendable service in legal literacy and legal awareness with several advocates, professors of law, counselors, activists and law students. The emphasis should be on mediation in a conducive environment with a view to amicably settle matrimonial disputes and disputes regarding custody of children out of court, with the least pain and anguish for the parties involved.

43. Coming back to the problem at hand, I think the earlier meetings between Abhinav and the Respondent are important, if they are appreciated on a cumulative basis, because they tend to demonstrate that perhaps there was little or no adverse reaction on Abhinav except to the extent stated by the Petitioner. Rather, there was a positive reaction as is clear from the order dated 24th March, 2003. It is true that the order dated 26th July, 2003 passed by a learned Single Judge records that Abhinav was not very keen and willing to spend time with his mother, but still the learned Single Judge directed meetings between them on 27th and 30th July, 2003 with no apparent adverse reaction. In this context, it is necessary to mention that the Petitioner did say is court that what Abhinav goes through and what he does after such meetings is best not described and it is unfortunate that he, as his father, has to witness these episodes. This may or may not be true, but in the absence of any preventive or remedial action immediately taken by the Petitioner after such meetings, I am of the view that his narration of the post-meeting events appear to be a little exaggerated. The narration of events only takes place when an application is moved by the Respondent to meet Abhinav and not immediately after the meetings are held. I think this is with the intention to somehow or the other try and avoid any meeting between Abhinav and the Respondent. Of course, the Petitioner justifies this by saying that the adverse impact is felt only after the meetings, but I am not inclined to completely accept his word. There may be some truth in it but not to the extent sought to be made out by the Petitioner.

44. The Petitioner has also sought to justify his refusal to permit Abhinav to meet the Respondent after July, 2003 on the ground that Abhinav himself did not want to meet the Respondent. There is again no material to support this conclusion except the word of the Petitioner, and the doctor's report, to which I will soon advert. The truth of this statement of the Petitioner can be determined only if Abhinav is left free to interact with the Respondent at a mutually convenient place and time.

45. In so far as the report of Dr. Sen is concerned, he has given the process of assessment, which includes twelve one-hour sessions with Abhinav between 4th August, 2003 and 5th January, 2004, the family background, personal details of Abhinav and a history of his mental health disturbances. In the section on the family background, it is noted, inter alia, that the Petitioner is convinced that the Respondent started having an intimate relationship with R during the first year of Abhinav's life and he also believes that Abhinav witnessed the Respondent and R in sexually intimate positions during the second year of his life, some of which he would try to emulate and subsequently started verbalizing what he had seen once he had the language to do so. Thereafter, the doctor discusses material from the therapy sessions, gives his opinion and recommendations.

46. According to the doctor, there were prominent themes of aggression in Abhinav's play. This became more frequent during the time of court visits and enforced contact with his mother. This observation is a little odd because after 30th July, 2003 there was no contact between Abhinav and the Respondent; perhaps there were also no court visits during this period. Dr. Sen has noted that Abhinav is very good in drawing and would often make pictures, but these pictures never included his mother. When he was asked to draw her picture, he drew one from his home in the US where his mother is seen in bed with R. The doctor mentions that Abhinav expressed strong feelings of anger and hostility towards his mother and consistently maintained right through therapy that he would not want any contact with her.

47. The opinion of Dr. Sen is that Abhinav has periodically suffered from emotional and conduct problems, which have been closely related to the abovementioned stressors, but he is currently enjoying good health due to the recent period of stability. In his opinion Abhinav has certainly witnessed sexual activity during the second year of his life and continues to have vivid memories of the same. His recommendation is that Abhinav should be kept away from the divorce proceedings and parental conflicts and should not be dragged to courts; he should not be forced to maintain or develop relationships that he cannot tolerate and his consistent refusal to meet his mother should be respected for some time to come.

48. It is true that Dr. Sen's report is not very encouraging from the point of view of the Respondent and it must be respected and given due weight. But, Dr. Sen has also left a window open for the Respondent by stating that the consistent refusal of Abhinav to meet her should be respected ''for some time to come''. He has not shut out all meetings between Abhinav and the Respondent, categorically or even otherwise. Dr. Sen gave his report in March, 2004 in which he has stated that he last met Abhinav sometime in January, 2004 The Petitioner also confirms this. Almost ten months have gone by since the last meeting between the doctor and Abhinav and it is difficult to say whether the period of relative stability has further benefited Abhinav or not and whether the period described as ''for some time to come'' is over or not. The doctor may have been the best person to answer these questions, but the Respondent expressed no faith in him. Consequently, I am left to make an assessment on the basis of the materials placed before me by both the parties and their learned counsels.

49. Given the background facts and also taking into account that Abhinav is now almost 7-+ years of age, it would certainly be in his interest and in the interest of both parents (assuming Dr. Sen is correct) to ascertain whether the period described as ''for some time to come" has ripened or not. This is possible only through a meeting between Abhinav and the Respondent, which I would encourage.

50. I find it very difficult to imagine, in the absence of anything to the contrary, that the Respondent who is a literate and articulate person would deliberately want to cause any anxiety, let alone any trauma, to Abhinav. If her meetings with Abhinav have disturbed him to the point of traumatizing him, she would have at least sensed it, if not realized it during one of her several meetings with Abhinav. Since there is nothing to suggest otherwise, I have to proceed on the basis that the Respondent still has love and affection for Abhinav, as one would expect a mother to have. Keeping this in mind, I must give the benefit of doubt to the Respondent and conclude that she would not insist on meeting Abhinav if she had any reason to believe that the meetings would have an adverse impact on him. If her actions are bona fide, as they appear to be, her judgment must be respected, at least for the time being, and if her meetings do not cause any trauma to Abhinav, she should be permitted to meet him as frequently as possible. On the other hand, if the meetings traumatize Abhinav, the Respondent's maternal instincts would certainly be able to sense the trouble and persuade her to take remedial steps/

51. In the long run, even if it were assumed that the Respondent had any adulterous relationship, it would be necessary for her and for Abhinav to come to terms with other realities and complexities of human relationships. Ideally, both the parents should make a joint effort to achieve this. Unfortunately, this does not seem possible in the present case. Therefore, each parent should at least make an individual effort. Consequently, I think the Respondent should be permitted to meet Abhinav so as to enable him to develop into a better human being. According to the Petitioner, Abhinav is one of the brightest children in his class and is virtually a role model for other students. If this is so, I have no doubt that he can turn out to be even better if he is also allowed the company of his mother, at least until such time as Abhinav and the Respondent think it appropriate. If for some reason the relationship between them does not mature or it sours, I am confident the Respondent is intelligent enough to now what to do, in the best interests of Abhinav.

52. Keeping all the facts of the case in focus and with the best interest of Abhinav in mind, I would uphold, in sum and substance, the impugned order passed by the learned Additional District Judge except to the extent of directing police aid to permit the Respondent to meet Abhinav. However, while dismissing the petition, I would modify the impugned order to the extent that the Petitioner should now take Abhinav to McDonald's Restaurant, Sector 18, Noida on 11th November, 2004 at 4.00 pm to enable him to meet the Respondent for two hours till 6.00 pm. The Respondent will thereafter hand over custody of Abhinav to the Petitioner at 6.00 pm in the aforesaid restaurant.

53. While I think it would be appropriate if the Respondent is permitted to meet Abhinav even thereafter until she leaves India on 14th November, 2004 (as scheduled), I do not think it appropriate to pass any orders in this regard because that would be going beyond the terms of the impugned order, which has not been challenged by the Respondent. However, I do certainly hope and trust that the Petitioner would, of his own accord, rethink the issue and permit Abhinav to meet the Respondent on days other than as directed above.

54. A copy of this order be furnished today to learned counsel for the parties and the parties under the signatures of the Court Master. The Trial Court record be sent back immediately.

55. Needless to say, any observation made hereinabove is only for the purpose of deciding this petition. It should not be construed as binding on the parties during trial.