Gujarat High Court

Vasim Hamidbhai Shahu vs Suhana Vasim Shahu W/O Vasim ... on 7 December, 2022

Bench: N.V.Anjaria

      C/FA/1347/2021                                      ORDER DATED: 07/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1347 of 2021

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                    VASIM HAMIDBHAI SHAHU
                            Versus
         SUHANA VASIM SHAHU W/O VASIM HAMIDBHAI SHAHU
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Appearance:
MS BHAKTI M JOSHI(3820) for the Appellant(s) No. 1
MR HRIDAY BUCH(2372) for the Defendant(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                           Date : 07/12/2022
                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

The present First Appeal arises out of judgment th and order dated 20 January, 2021 by Family Court

No.2, Ahmedabad in Civil Misc. Application No.28 of

2019. It was an application under Section 26 of the

Guardians and Wards Act, 1890.

1.1 The applicant - father prayed for retaining the

custody of minor daughter named Aliza. He also prayed

for injunction to restrain the opponent - wife from

interfering in the custody of the daughter.

2. The Family Court refused to grant the prayer

C/FA/1347/2021 ORDER DATED: 07/12/2022

regarding custody and passed the following operative

order,

"[1] The present application is hereby rejected so far as

prayer as prayed for in paragraph 60 (A), (B) and (C)

of the main application.

[2] It is hereby ordered that the applicant-father shall

have visitation rights once in a month on every 3red

Saturday of each calendar month for two hours between 03 p.m. and 05 p.m. at the Child Visitation

Center of this Family Court Complex, subject to the

convenience of the child in question.

[3] The opponent-mother is hereby ordered and directed

to facilitate the applicant-father for the visitation rights

in above terms.

[4] Both the parties would take proper care and would

maintain interest of the minor in question as required

during the visitation period.

[5] There shall be no order as to costs.

[6] It is further ordered that the present applicant -

father can get executed this order and he can have

visitation rights and physical access of the minor

daughter in question only after physical functioning of

this Family Court, Ahmedabad, begins."

2.1. The proceedings of this appeal witnessed the

passing of order dated 27.09.2021 by the Coordinate

C/FA/1347/2021 ORDER DATED: 07/12/2022

Bench, as under.

"1. This first appeal is at the instance of the (original

plaintiff) father against the order dated 20.1.2019

passed by the Family Court, Ahmedabad in the Civil

Misc. Application No.28 of 2019. The directions issued

by the Family Court reads thus:-

"(1) The present application is hereby rejected so

far as prayer as prayed for in paragraph 60(A),

(B) and (C) of the main application.

(2) It is hereby ordered that the applicant father

shall have visitation rights once in a month on

every 3rd Saturday of each calendar month for

two hours between 03 p.m. and 05 p.m. at the

Child Visitation Center of this Family Court

Complex, subject to the convenience of the child

in question.

(3) The opponent-mother is hereby ordered and

directed to facilitate the applicant-father for the

visitation rights in above terms.

(4) Both the parties would take proper care and

would maintain interest of the minor in question

as required during the visitation period.

(5) There shall be no order as to costs. (6) It is

further ordered that the present applicantfather

can get executed this order and he can have

visitation rights and physical access of the minor

daughter in question only after physical

C/FA/1347/2021 ORDER DATED: 07/12/2022

functioning of this Family Court, Ahmedabad,

begins."

2. This Court issued notice on 7.6.2021. By order dated

12.7.2021 we directed the appellant i.e. Vasim

Hamidbhai Shahu to remain present before us with the

minor daughter Aliza on Thursday i.e. 15.7.2021.

Pursuant to our directions the appellant remained

present with minor daughter Aliza on 15.7.2021. One of

us (Mrs. Vaibhavi D. Nanavati, J) talked to minor

Aliza in her chamber. Aliza appeared to be a bright

and happy child. During the course of conversation

with Aliza she informed that she is pursuing her study

at the Sreyash Foundation in the 8 th Grade. Minor

Aliza stated that as her father works outside the

house, she remains in the company and care of her

grand-mother. She was reluctant to answer when asked

if she would be willing to reside with her mother i.e.

Suhana Vasim Shahu. She found herself more

comfortable and relieved when she was informed that

the meeting which was arranged was not for her to

choose between either of her parents with whom she

would be willing to reside but the meeting was mainly

to know Aliza and her well being was of paramount

consideration for this Court. She seems to be a very

mature child and understands the dispute between her

parents very well.

3. One of us, Mrs. Vaibhavi D. Nanavati, J once again

C/FA/1347/2021 ORDER DATED: 07/12/2022

met Aliza in Chamber on 29.7.2021 in accordance with

the order passed by this Court dated 15.7.2021. She

was accompanied by her father and grand-mother.

During the meeting on 29.7.2021 it could be culled out

from the conversation that she had affection for her

mother Suhana as well. It, however, appeared that she

was not willing to meet her mother at the cost of

displeasing her father. Mrs. Vaibhavi D. Nanavati, J

then met the father and grand-mother. Both of them

at the outset consented and agreed that Suhana was

the natural mother of Aliza and that they would not

object to Aliza meeting her mother. It appears that

Aliza is a sole accompany for the grand-mother and,

therefore, it can be understood that she would be

possessive for Aliza and her love for Aliza also would

be genuine. After interacting with Vasim Shahu - the

appellant it clearly appears that there is no chance of

reconciliation between the parties and both, the

appellant and the respondent are happy to have parted

their ways. The sole consideration therefore for this

Court is once again the well being of Aliza.

4. By order dated 29.7.2021 we requested the

respondent Ms.Suhana, mother of Aliza to remain

present in the chamber of Mrs. Vaibhavi D. Nanavati,

J on 31.7.2021 at 2:00 p.m. During the meeting

Ms.Suhana informed that she is working in a private

Insurance Company and staying by herself. She

C/FA/1347/2021 ORDER DATED: 07/12/2022

appeared to be very keen and anxious to have Aliza

back with her. She appears to be a very practical

person and pragmatically she stated that she may be

permitted to meet Aliza. According to her, mother and

daughter have not met enough in the recent past and

only if the two of them were permitted to meet by

themselves without any restrictions, they would be able

to bond well as mother and daughter. She informed

that she was ready and willing to pick-up Aliza from

her husband's residence and drop her back. She stated

that she has reservation in meeting the daughter Aliza

at the residential house of her husband where Aliza is

at present residing. We found the same with the Aliza

when we met her, that she would be more comfortable

meeting the mother outside the place of residence

where she resides with her father and grand-mother.

5. We have a case on hand where though the custody

is given to mother, the daughter is actually residing

with the father. The father is given only the visitation

rights by the Family Court. The daughter is residing

with the father prior to the order of custody passed by

the Family Court on 20.1.2021.

6. The situation is such that though the father is

given the visitation rights, the daughter is actually

residing with her father. The father is also taking good

care of her daughter Aliza. During the course of our

meeting we found that Aliza is taken care of well by

C/FA/1347/2021 ORDER DATED: 07/12/2022

father and the grand-mother. Still however, we find

that the mother's care and warmth is equally

important for a minor girl Aliza. In such circumstances,

before we pass any final order, we are of the view

that some interim directions are required to be given

to facilitate the well being of Aliza.

7. In the above background and having considered the

broad consensus between the parties appearing through

their advocates and after interaction with the parties

themselves, we pass the following interim order:-

(a) It is directed that minor Aliza be picked up by the

mother Ms. Suhana Vasim Shahu from the place where

Aliza is residing with her father and remain in the

custody of her mother from 10:00 a.m. to 5:00 p.m. on

every Saturday and Sunday.

(b) If Aliza has a school working Saturday, mother Ms.

Suhana Vasim Shahu will pick up Aliza after school

hours and drop her back at the place of residence

where she is residing with her father at 8:00 p.m.

and grand-mother in the morning, but in the evening,

it is directed that she will be in custody of mother Ms.

Suhana Vasim Shahu for atleast five hours.

(d) The arrangement of picking up and dropping Aliza

can be mutually worked out between the appellant -

Vasim Hamidbhai Shahu and the respondent - Ms.

Suhana Vasim Shahu.

C/FA/1347/2021 ORDER DATED: 07/12/2022

(e) duration of the Summer vacation would be at least

four weeks. The mother Ms. Suhana Vasim Shahu will

be entitled to have custody of minor Aliza for two

weeks.

During the above period of two weeks it will be

open for Ms. Suhana Vasim Shahu to take Aliza

out for holidays to a place of her choice where

she feels comfortable.

(f) On Aliza's birthday, Aliza can be with the father -

Vasim Hamidbhai Shahu for the first half of the day

and during the second half of the day till 9:00 p.m.

Aliza be in the custody of her mother - Ms. Suhana

Vasim Shahu.

(g-1) It is directed that mother - Ms. Suhana Vasim

Shahu be permitted to attend all the school functions

such as annual day, foundation day, sports day,

parents teachers meeting.

(g-2) We direct the school authority to enter the name

of the mother in the school record, if the same is not

figuring in the school record.

(h) It is directed that mother Ms. Suhana Vasim

Shahu can talk telephonically as also through video

call to minor Aliza at any time during the day.

(i-1) It is further directed that father - Vasim

Hamidbhai Shahu shall furnish proper contact details

to the mother Ms. Suhana Vasim Shahu to facilitate

her to be in contact with minor Aliza.

C/FA/1347/2021 ORDER DATED: 07/12/2022

(i-2) It is directed that any changes which may occur

with respect to contact number, whereabouts of minor

Aliza that be appraised to mother Ms. Suhana Vasim

Shahu. Similarly when Aliza is in custody with mother

Ms. Suhana Vasim Shahu, father - Vasim Hamidbhai

Shahu be furnished with details of whereabouts and

contact number.

8. We make it clear that the aforesaid is an interim

arrangement. We would like to observe whether the

interim arrangement works without further difficulty.

So far as the main matter is concerned, we shall hear

it after sometime.

List the main matter for further hearing after

four months."

2.2 It is in the above light of the order, the

observations made therein and the findings recorded by the Coordinate Bench that the submissions of the parties

were considered.

3.1 Learned advocate Ms. Bhakti M. Joshi for the

appellant and learned advocate Mr. Hriday Buch for the

respondent jointly submitted affidavit pointing out that

the parties have settled their dispute regarding custody

of the minor daughter - Aliza. The affidavit of

settlement dated 07.12.2022 along with its

C/FA/1347/2021 ORDER DATED: 07/12/2022

accompaniments is taken on record. The affidavit inter

alia made reference to the aforesaid order dated

27.09.2021, wherein interim arrangement regarding

visitation was made.

3.2 It was stated that the parties have been following

the said arrangement. It was further stated that the

parties have now agreed to adhere to them in the

future, more particularly, para 7 of the said order.

4. The affidavit of settlement in its relevant contents

reads as under:

"ii. It is agreed between the parties that the custody

of Minor child i.e. Aliza shall remain with the

Appellant - father and visitation - arrangement will

continue as mentioned hereinabove.

iii. The parties have mutually agreed to confine their

conjugal rights and consented to obtain the decree of

divorce from the competent Court."

5. When inquired about the present state of things,

learned advocates for the parties, on instructions, jointly

stated that child - Aliza has been staying at her

parental home with her father and has been under good

care of the grand - parents. It was stated that as

C/FA/1347/2021 ORDER DATED: 07/12/2022

recorded in the aforesaid order dated 27.09.2021, the

child is happy and pursuing her studies.

5.1 The parties are also present in the Court, identified

by the respective advocates, who also confirmed to have

arrived at the aforesaid settlement and the fact that

custody of the daughter, as per the mutual agreement