Nitaben Nirmalbhai Patel vs Nirmal Amrutlal Patel

Honourable Mr. Justice J.C. Upadhyaya

The challenge in this appeal is to the judgment and order dated 30/6/2010 rendered by the Ld. Addl. District Judge, Valsad in Misc. Guardianship Application No. 26/2008, whereby the aforementioned application filed by the appellant herein, who was original petitioner in the said matter and which was filed u/s 7 of the Guardians and Wards Act [hereinafter referred to as ''the Act''] came to be dismissed by the trial Court. The facts leading to the aforementioned proceedings under the Act before the trial Court is that the appellant married respondent on 3/6/1997. During their lawful wed-lock, a male child named Bhagyesh was born and his date of birth is 1/6/1999. It was the case of the appellant that their matrimonial life remained happy during first 6 to 7 years of their marriage, but thereafter, the respondent started quarreling with the appellant and the appellant was meted out to physical and mental cruelty by the respondent. Despite the fact that the respondent was Architect, but he was not doing any work and throughout the day he used to remain in house. The appellant was serving in Government Polytechnic College, Valsad, and whenever she used to leave her home to attend her job, the respondent was ear-poisoning son Bhagyesh against the appellant. Even Bhagyesh used to complain about this to the appellant. The parents of the appellant resided at Vadodara and whenever she was going to her parent''s house, she was not permitted even by the respondent to talk on telephone with Bhagyesh. On 8/11/2007 the respondent quarreled with the appellant and the appellant was driven out from her matrimonial home by the respondent keeping the custody of Bhagyesh with him. The respondent did not allow the appellant to meet Bhagyesh. The appellant had no option but to file an application u/s 97 of the Code of Criminal Procedure [Cr. P.C.] for getting custody of Bhagyesh, but her application was turned down by Ld. Chief Judicial Magistrate, Valsad. The appellant had sent a notice through her advocate to the respondent on 4/2/2008 for restitution of conjugal rights and to permit her to meet Bhagyesh. But the respondent did not reply said notice. Even the appellant was not permitted by the respondent to occupy residential quarter, which was allotted to the appellant. The appellant could collect required certificates and documents from the house of the respondent only with the intervention of police. Ultimately, the appellant had to lodge an FIR against the respondent and his other family members u/s 498A read with section 114 of the Indian Penal Code [IPC] and said proceedings are pending.

1.1 It was further the case of the appellant before the trial Court that she was serving as Lecturer in Government Polytechnic College, Valsad and at the relevant time, her monthly salary was Rs. 19,000/-. The appellant is the only daughter of her parents and in her provident fund, life insurance, etc., the name of the respondent and minor Bhagyesh came to be entered into. The financial condition of the appellant is thus very sound. However, so far as the respondent is concerned, though he is Architect, he is not doing any work and he is not attending his private office and he has thus no means of income. The respondent is suffering from various ailments including hypertension. Therefore, he is not in a position to control his anger and acts violently. The appellant, therefore, filed the aforementioned petition seeking permanent custody of minor Bhagyesh.

The respondent resisted the said petition before the trial Court and virtually denied all the allegations levelled against him by his wife, the appellant. He contended that as a matter of fact, the appellant failed in her duty as mother and she was not taking any care for Bhagyesh. It was further contended that the welfare of Bhagyesh can be best preserved if he stays with the respondent. He denied the allegation that he was not doing any work and he had no means of income. He contended that in the proceedings initiated by the appellant u/s 97 of the Cr. P.C., the concerned Ld. Magistrate inquired to Bhagyesh about his willingness and ascertained his wish and Bhagyesh refused to go with the appellant and expressed his desire to stay with the respondent. It was contended by him that since at the relevant time Bhagyesh was more than aged about 6 years, he being father, was natural guardian of Bhagyesh. He had outright denied the allegation that he was ear-poisoning Bhagyesh against the appellant. The respondent further contended that even he was the only son of his parents and his father is retired professor and gets pension. The respondent has his family house as well as owns motor vehicle. He is doing his profession as Architect at Valsad and Vapi and at Vapi he has his private office. He contended that his financial condition is very sound.

Before the trial Court, it transpires that the evidence of the appellant was recorded at exh. 11 and she examined one witness Rohit Jethalal at exh. 44. The evidence of the respondent was recorded at exh. 86 before the trial Court. Both the parties produced documentary evidence. After considering the oral and documentary evidence on record, in the impugned judgment and award rendered by the trial Court, about the financial condition of both, the appellant and the respondent, the trial Court came to the conclusion that there is no much difference between their financial condition. The trial Court further came to the conclusion that since Bhagyesh was residing with the respondent, the respondent was taking care of his education. The trial Court also observed that so far as the appellant is concerned, she was residing all alone at Valsad as her parents were residing at Vadodara; whereas at the house of the respondent, over and above himself, his father [grand father of Bhagyesh] was also residing, who can look after Bhagyesh whenever respondent had to go out for his work. However, the trial Court observed that it is true that in the house of the respondent, there is no female member. The trial Court further took into consideration that neither of the parties made any allegation regarding character or chastity against other party. The trial Court also took into consideration relevant record produced in the aforementioned petition from the proceedings u/s 97 of the Cr. P.C., and observed that even in the said proceedings Bhagyesh expressed his desire to stay with his father. The trial Court in para. 29 in the impugned judgment observed that after the entire evidence was over and after the learned advocates representing both the parties concluded their arguments, the Ld. Judge of the trial Court interviewed Bhagyesh. The trial Court noted that upon certain preliminary questions being asked to Bhagyesh, it appeared that Bhagyesh was intelligent enough to understand and to express his desire and according to the trial Court, Bhagyesh expressed his desire that he did not want to stay with his mother, but he desired to continue to stay with his father.

3.1 Evaluating and appreciating entire oral and documentary evidence on record, the trial Court took into consideration the allegation made by the appellant that it was a systematic approach of the respondent to poison the ears of Bhagyesh against the appellant and in that respect, not only he orally tutored Bhagyesh but he started helping Bhagyesh in his day to day activities. The trial Court, upon appreciation of evidence, came to the conclusion that all such allegations are baseless. However, the trial Court observed that whenever interim custody was handed over to the appellant, Bhagyesh was found happy with the appellant and also considered photographs of Bhagyesh while he was in temporary custody of the appellant. The trial Court further observed that the respondent was imparting good education to Bhagyesh and he was admitted in comparatively good English medium school. The trial Court further observed that the oral allegation made by the appellant that respondent was suffering from ailments including hypertension and because of this, he acted violently, the said allegation was not proved.

The trial Court, appreciating the oral and documentary evidence on record, considered that the respondent was doing work as Architect and Structural Designer and used to receive income. However, it was observed that he had not steady income like the income which the appellant used to get by way of salary, but the respondent had sufficient financial means to take care of daily need of Bhagyesh and to impart him good education. The trial Court further observed that since Bhagyesh was above 6 years of age, considering section 6 of the Hindu Minority and Guardianship Act, the father can be said to be the natural guardian. Even Bhagyesh expressed his desire to stay with his father, the respondent.

4.1 Ultimately, the trial Court came to the conclusion that it was in the welfare of Bhagyesh that he continues in the custody of his father, the respondent. The trial Court then observed that despite the fact that the petition filed by the appellant for custody of Bhagyesh deserves to be dismissed, but the appellant being mother, necessary provision regarding her visitation rights shall have to be made. However, in para. 51 in the impugned judgment, the trial Court observed that during the pendency of said petition, whenever orders regarding temporary custody of Bhagyesh came to be passed, invariably the respondent - father challenged said orders. The trial Court, therefore, expressed a desire that the respondent should cooperate the appellant in her exercising and enjoying her visitation rights.

Ultimately, the trial Court while dismissing the petition filed by the appellant for permanent custody of Bhagyesh, granted visitation rights to her. The trial Court permitted the appellant to meet Bhagyesh in the Court premises itself between 3.00 pm to 6.00 pm on 1st and 3rd Saturday of every English calendar month till Bhagyesh attains majority. The trial Court permitted the appellant-applicant mother to take Bhagyesh even outside the Court premises, but she was directed to return back Bhagyesh on or before 6.00 pm. It was further directed that if 1st or 3rd Saturday happens to be holiday, then the said order to be complied with on the next working day of the Court. The respondent -opponent father was also directed to bring Bhagyesh to Court on or before 3.00 pm on 1st and 3rd Saturday and at the time when the appellant mother meets Bhagyesh, the respondent father should keep himself away from the Court premises. The trial Court further directed that during summer vacation, the appellant-applicant mother was entitled to keep temporary custody of Bhagyesh for first two weeks of summer vacation and during Diwali vacation, she was permitted to keep temporary custody of Bhagyesh for one week. The trial Court further directed that as soon as the said period shall be over, the appellant mother shall immediately return back the custody of Bhagyesh to the respondent father. The appellant-applicant mother was further directed by the trial Court that during the temporary custody of Bhagyesh, she shall take appropriate steps so that the education of Bhagyesh shall not be adversely affected. The said judgment and order passed by the trial Court is under challenge in this appeal preferred by the appellant - mother.

For the sake of convenience, appellant - applicant and the respondent - opponent shall be hereinafter referred to as ''the mother'' and ''the father''.

Mr. Mehul S Shah, Ld. Advocate for the appellant- applicant mother submitted that the trial Court committed serious errors of law and facts on record while dismissing the petition of the mother. It is submitted that despite the fact that the trial Court came to the conclusion that the mother is comparatively financially sound and she has steady income and she can appropriately look after the welfare and education of Bhagyesh, the trial Court erred in dismissing the petition of the mother. Mr. Shah further submitted that Bhagyesh was born on 1/6/1999 and at present he is aged about 13 years and he is studying in 9th standard. He submitted that as per the case of the mother and even as per the evidence on record, the mother was deserted by the respondent - father on 8/11/2007. Since then, the father is in custody of Bhagyesh. Mr. Shah submitted that their marriage came to be solemnized on 3/6/1997 and soon after the marriage, the father used to harass the mother and ultimately she was driven out from her matrimonial home keeping the custody of Bhagyesh. He submitted that from the very beginning, the father started poisoning the ears of Bhagyesh against his mother to such an extent that Bhagyesh gradually developed feeling of ill-will and hatred against his mother. He submitted that it was a calculative attempt on the part of the father to see that the mother could be driven out from the matrimonial house and Bhagyesh remains in his custody.

7.1 Mr. Shah, Ld. Advocate for the appellant mother, at the outset, submitted that despite the fact that in a pending petition several orders were passed by the trial Court to hand-over temporary custody of Bhagyesh to his mother, yet the father challenged the said orders before this Court and the mother was not permitted to use even her interim visitation rights. He submitted that despite the fact that the trial Court, while dismissing the petition of the mother, granted visitation rights in favour of the mother, yet the mother is not in a position to exercise said right. It is further submitted that even during pendency of this appeal, several orders were passed for temporary visitation rights in favour of the appellant mother, yet she could not exercise said right even for a single occasion except on one occasion she could exercise such right and for temporary period, she could take Bhagyesh with her to Goa. Mr. Shah submitted that during the temporary period Bhagyesh stayed with his mother, he was very happy in the company of his mother and in support thereof, my attention was drawn to certain photographs from the relevant album. Mr. Shah further submitted that in the family of the father, there is no female member, but the respondent has his father alive [the grand father of Bhagyesh] and he is old aged retired person. It is submitted that it is true that at present the mother is residing all alone, but she undertakes that if the appeal would be allowed and the permanent custody of Bhagyesh is given to her, she will keep with her, her parents. It is submitted I that even her parents are ready to file such undertaking on oath.

7.2 Mr. Shah further submitted that both the appellant and the respondent are residing in Valsad and even the distance between their houses is less than one half KM. It is submitted that under such circumstances, if the permanent custody of Bhagyesh is given to his mother, the mother shall abide by all the necessary directions which this Court may pass in favour of the father for visitation rights. The mother undertakes that she will not cause any obstruction to father in his exercising visitation rights. Mr. Shah submitted that it is the father who is not allowing the mother even to exercise her visitation rights by causing obstruction and Mr. Shah drew my attention to the fact that even the police machinery along with NGO were required to be involved to see that the mother could exercise her visitation rights and he relied upon detailed reports by police dated 17/12/2011, 31/12/2011, 7/1/2012, 21/1/2012 and 4/2/2012 and submitted that these reports would reveal the conduct of the father and considering this, as a matter of fact, the father has committed contempt not of the trial Court but even of this Court and for the said purpose, the mother has filed Civil Application No. 8914/2011. Mr. Shah submitted that as a counter blast, the father filed Civil Application No. 1820/2012 wherein the unique and unusual relief is prayed that the father may be permitted to present the child [Bhagyesh] before this Court and this Court may kindly be pleased to take custody of Bhagyesh and to see that Bhagyesh meets his mother in compliance of the order dated 24/6/2011. It is submitted that this is one another way of father to see that any-how mother is kept away from Bhagyesh. Mr. Shah, therefore, submitted that as a matter of fact, considering such conduct of the father, the appeal deserves to be allowed. But alternatively he submitted that at-least some strict order may be passed so that the mother can exercise her visitation rights.

7.3 Mr. Shah, during the course of his submissions, relied upon relevant provisions of Guardians and Wards Act and more particularly sections 17 and 25, so also relevant provisions of Hindu Minority and Guardianship Act and more particularly sections 6 and 13 of the said Act and submitted that as a matter of fact, the natural guardian of Bhagyesh may be his father, but that is not sole factor to permit him to keep permanent custody of Bhagyesh, but the guardianship Court shall have to consider the welfare of the child and the welfare of child shall be of paramount consideration. In support thereof, Mr. Shah relied upon certain decisions, which shall be discussed in this judgment at appropriate time. Ultimately, it is submitted that the appeal may be allowed.

Per contra, Mr. Gandhi, Ld. Advocate for the respondent - father supported the impugned judgment and order passed by the trial Court and submitted that the trial Court was perfectly justified in dismissing the petition of the mother. It is submitted that the financial condition of the father is sound and even in his family, he is residing with his father and, therefore, in his absence, his father can look after Bhagyesh. It is submitted that even before the trial Court, nothing comes on record that the welfare of Bhagyesh is not properly taken care of by his father. Bhagyesh is at present aged about 13 years and is studying in 9th standard and father is appropriately taking care of his education. Mr. Gandhi submitted that even before the separation, when both the spouses were living together, at that time also, it was the father, who was looking after day to day affairs of Bhagyesh. Mr. Gandhi submitted that only because father has love and affection of his son, that cannot be viewed by mother that the father was poisoning the ears of Bhagyesh and he was hatching any conspiracy against mother. He submitted that it is pertinent to note that mother stays all alone and no weight should be attached to her promise that if custody of Bhagyesh is given to her, she would keep with her, her parents. Mr. Gandhi submitted that since the year 2007 till date, it is the father who is looking after the needs and welfare of Bhagyesh. During these years, no attempt came to be made by the mother to cultivate some love and affection for her in the mind of Bhagyesh. Mr. Gandhi submitted that on the contrary, she filed criminal complaint against father, so also she involved police machinery to exercise her visitation rights. Mr. Gandhi submitted that any involvement of police can never be said to be proper for Bhagyesh as that will adversely affect the tender mind of Bhagyesh. Mr. Gandhi submitted that even considering various reports of police authority, so also various orders passed by the trial Court pending the petition, as well as by this Court pending the appeal, one common fact which would emerge is that it is Bhagyesh who is not willing to meet his mother. He submitted that even considering impugned judgment and order passed by the trial Court, it appears that after the conclusion of arguments, the Ld. Judge of the trial Court interviewed Bhagyesh and has observed in the impugned judgment that Bhagyesh used to love his father and was not willing to stay with mother. Mr. Gandhi, therefore, submitted that for such act of Bhagyesh, the father cannot be made responsible for contempt of Court. To show his bonafide, he has filed Civil Application No. 11820/2012, wherein he has categorically stated that he has no objection even to hand-over custody of Bhagyesh to the Court and Court may pass appropriate order of visitation rights in favour of the mother after ascertaining the wish of Bhagyesh. Mr. Gandhi relied upon certain decisions, which shall be discussed in this judgment at appropriate time and submitted that even to exercise visitation rights, the wish of a child carries much weight. Mr. Gandhi submitted that in the instant case, now Bhagyesh cannot be said to be a small child, but he is aged about 13 years and studying in 9th standard. He is intelligent enough to decide his preference. Mr. Gandhi submitted that as a matter of fact, pending the appeal, there are no change in circumstances. Mr. Gandhi, therefore, submitted that the appeal is devoid of merits and deserves dismissal and it is submitted that the Civil Application No. 8914/2011 filed by the mother to take appropriate action against father under Order 39 Rule 2A of the CPC [C.P.C.] for alleged disobedience and/or breach of interim order, is nothing but a futile exercise by mother to see that any-how the father is pressurized. He, therefore, submitted that the said application may also be dismissed.

Before this Court undertakes the task of entering into the merits of the matter, it would be pertinent to note that this Court on 20/11/2011 passed an order in Civil Application No. 8914/2011 in First Appeal No. 3909/2010 [the instant appeal] and passed certain order on 8/12/2011 in Civil Application No. 12690/2011 in Civil Application No. 8914/2011 in First Appeal No. 3909/2010 [the instant appeal] and the orders came to be challenged by the respondent - father before Hon''ble the Apex Court by preferring Special Leave to Appeal [Civil] Nos. 34956 and 34957 of 2011 and Hon''ble the Apex Court on 20/7/2012 passed the following order:

Call the matters after six weeks.

Interim order dated 11th May, 2012, shall continue till further orders.

We have been informed that the main appeal is coming up for consideration before the High Court on 31st July, 2012. We would appreciate, if subject to Court''s convenience, the main appeal is taken up for consideration on the next date and disposed of as expeditiously as possible.

In above view of the matter, the instant appeal was finally heard and is being disposed of by this judgment.

I have considered the record and proceedings in context with the submissions made by both the sides. Before the trial Court, the deposition of mother was recorded at exh. 11 and she examined one witness Rohit Jethalal at exh. 44. No more witness was examined by her. The deposition of respondent - father was recorded at exh. 86. No more witness was examined by him. Both the parties produced relevant documents before the trial Court. Considering the impugned judgment rendered by the trial Court, it transpires that the trial Court took into consideration the oral and documentary evidence adduced by both the sides, so also considered the submissions advanced by the learned advocates representing both the sides as well as it transpires that after the arguments were over before the trial Court, the Ld. Judge of the trial Court, in his chamber, interviewed Bhagyesh. It further transpires that the trial Court framed two issues, namely as to whether the applicant [mother] proves that the welfare of child Bhagyesh will be more protected and safeguarded, if his custody is given to the mother rather than the father and the second issue pertains to what should be the final order. The trial Court replied issue No. 1 in the negative.

It transpires that the trial Court in the impugned judgment, at length examined and evaluated oral and documentary evidence adduced by both the sides. The trial Court also took into consideration relevant provisions of the Guardians and Wards Act as well as the Hindu Minority and Guardianship Act. There is no dispute that both the parties are Hindu. The trial Court took into consideration section 6 of the Hindu Minority and Guardianship Act, wherein it has been provided that the natural guardian of a Hindu minor, in respect of the minor''s person as well as in respect of the minor''s property, are in the case of a boy or an unmarried girl -the father, and after him, the mother. It has further been provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. The trial Court also considered section 13 of the Act, wherein it has been specifically provided that in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.

The trial Court took into consideration section 17 of the Guardians and Wards Act pertaining to the matter to be considered by the Court in appointing a guardian. The welfare of the minor is again considered to be the principal factor. It is further provided that in considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. In sub-section [3] of section 17 of the Act, it is further provided that if minor is old enough to form an intelligent preference, the Court may consider that preference. The trial Court also considered relevant provisions of section 19 of the Act, wherein it is provided that nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor.

There is no dispute that date of birth of Bhagyesh is 1/6/1999. In the year 2010 when the trial Court rendered impugned judgment and order, Bhagyesh was, at the relevant time, aged about 11 years and by now he is aged about 13 years and admittedly he is studying in standard 9th. There is again no dispute that the marriage between the applicant-appellant and the respondent came to be solemnized on 3/6/1997 and in the year 1999 Bhagyesh was born. It further transpires that from the date of birth of Bhagyesh till today, Bhagyesh is with his father. It has come in evidence that the separation took place between the spouses on 8/11/2007. The mother alleges that she was deserted and driven out from her matrimonial home by the father; whereas the father alleges that mother left matrimonial home. As a matter of fact, it is the very dispute which ultimately resulted into the instant petition for custody of Bhagyesh. At the time of arguments, both the learned counsel representing the parties submitted that several attempts were made in past to see that both the parents of Bhagyesh are reunited, but those attempts were in vain. It is further submitted that the appellant mother has filed a Hindu Marriage Petition against the respondent father u/s 9 of the Hindu Marriage Act for restitution of conjugal rights and said petition is pending. Under such circumstances, it would not be proper and advisable for both the parties, if any observation is made by this Court as to what actually happened on 8/11/2007, viz whether wife was deserted by the husband or whether wife on her own left her matrimonial home. Appropriate decision will be rendered by the competent Court in the above referred Hindu Marriage Petition.

It is no-doubt true that by now Bhagyesh is aged about 13 years and at any rate it cannot be said that he has not completed the age of 5 years. Therefore, u/s 6 of the Hindu Minority and Guardianship Act, the father can be said to be natural guardian of Bhagyesh. However, there is no dispute that section 6 of the Act is required to be read in context with section 13 of the Act, wherein it has been clearly provided that the welfare of the minor shall be the paramount consideration. Considering section 17 of the Guardians and Wards Act, it has been seen that to decide as to what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor and the character and capacity of the proposed guardian and his nearness of kin to the minor. If the Court comes to the conclusion that the minor is old enough to form an intelligent preference, then the Court may consider such preference and that shall be an additional ground. In the impugned judgment, the trial Court relied upon various decisions and even in the case of Mausami Moitra Ganguli Vs. Jayant Ganguli, Hon''ble the Apex Court observed that the welfare of child is not only relevant consideration, but it is the most relevant consideration. Better financial resources of either of the parents or their love for child or statutory presumptions like father is better suited, may be one of the relevant considerations, but cannot be the sole determining factor for the custody of the child.

After considering the legal aspect of the matter, if the oral and documentary evidence adduced by both the parties is re-examined, reassessed and re-evaluated, it transpires that admittedly in the family of father, at present, over and above Bhagyesh, the grand father of Bhagyesh is also residing and he is a retired person. There is no dispute that at present so far as the mother is concerned, she is residing all alone. However, it has been submitted on behalf of the mother that her parents are willing to stay with her at Valsad, if the custody of Bhagyesh is handed over to the mother. Be that as it may, but at the time when the trial Court rendered the impugned judgment and order and even at present the number of family members remained the same son far as father and mother are concerned. It has been submitted on behalf of the mother that it is true that grand father of Bhagyesh is residing in the family of his father and thus there is no female member in the family of father, who can look after day to day affairs of Bhagyesh. It is pertinent to note that, as stated above, from the time of birth of Bhagyesh till date, Bhagyesh is looked after by his father. However, this fact was highlighted by the mother before the trial Court as well as before this Court that it was a calculated move of the father to create good feeling for him in the mind of Bhagyesh and this suggests the conduct of the father being over possessive. It appears that in the impugned judgment, the trial Court rightly dealt with this aspect of the matter and observed that so far as Bhagyesh is concerned, the very fact that his father loves him cannot be viewed with any suspicious. Till 2007, both the spouses along with Bhagyesh, resided under one roof and as stated above, in the year 2007 Bhagyesh was not such a small child who could not understand the feeling of love and affection of his mother and of his father. He was, at the relevant time, aged about 8 years. From 2007 onwards till date, Bhagyesh continued to reside with his father. It is pertinent to note that considering the oral and documentary evidence as a whole adduced by both the parties, there is nothing that any such event occurred which could be considered as adverse to the welfare of Bhagyesh. To put it differently, nothing reveals that father ever committed any breach of his obligation for the development and up-keeping of Bhagyesh. As revealed from the evidence, Bhagyesh is admitted in a good school and at present he is studying in 9th standard. There is nothing that his education shall be adversely affected, if his custody remains with father. It is further pertinent to note that the next 3 years shall be crucial years in the life of Bhagyesh because in next 3 years, he shall be in Standards 10th, 11th and 12th and his future career shall depend upon oncoming 3 years. During the course of evidence before the trial Court, it appears that an attempt was made by the mother to show that the father was patient of hypertension and at times he was not in a position to control his temper and sometimes he acted violently. But in the impugned judgment, appreciating the over-all evidence on record, the trial Court rightly observed that the mother failed to prove such charges against the father. There is nothing that at any point of time Bhagyesh was meted out with any cruelty or ill-treatment by his father. It is again pertinent to note that mother did not allege anything against the character of father.

The trial Court also took into consideration the financial position of both, mother and father. It is true that as submitted on behalf of the mother, at the time when the petition was pending before the trial Court, her total monthly pay was Rs. 32,000/- and it is submitted that at present she is earning Rs. 51,000/- per month. There is no dispute that the mother is serving as Lecturer in Government Polytechnic College, Valsad. On behalf of the mother, it has also been submitted that so far as father is concerned, though he is Architect Engineer and is doing his profession as such, but he has no steady income and, therefore, for future development of Bhagyesh so far as his education and personality are concerned, mother can better look after it than the father. In the impugned judgment, the trial Court examined this aspect of the matter and ultimately observed that as a matter of fact, so far as the financial status of both, mother and father is concerned, there is no much gap. The father has his own income from his profession as Architect Engineer. It has come in evidence that he has his office at Vapi. His father gets pension, who is residing with him. He has his own house wherein the father along with Bhagyesh resides. There is nothing pointed out that the father was not in a position to meet with all the expenses of Bhagyesh, for his education and for his future development. As stated above, financial condition may be one of the grounds, but not the sole ground to retain or to get custody of minor child.

Before the trial Court as well as before this Court, as stated above, on behalf of the mother, it was vehemently submitted that from the beginning the father started the activity of ear poisoning Bhagyesh against his mother and gradually because of such ear poisoning caused by father, Bhagyesh developed grudge against his mother. It has been submitted that because of the matrimonial dispute between father and mother, father used Bhagyesh as a tool to take revenge against his mother. The trial Court in the impugned judgment elaborately discussed this aspect of the matter. It is true that during the pendency of the petition, certain orders were passed by the trial Court regarding temporary custody of Bhagyesh and when such orders were challenged before this Court by father, an observation was made that the father created such situation that Bhagyesh developed ill-feeling for his mother. However, those were tentative and prima-facie observations. In the impugned judgment, in para. 33, the trial Court dealt with this aspect of the matter and also considered such observations, but appreciating and evaluating over-all evidence on record, the trial Court came to the conclusion that only because father loved Bhagyesh, it cannot be said that this was a part of his conspiracy to take revenge against mother of Bhagyesh. On behalf of the father, it has been submitted before this Court that so far as mother is concerned, there is nothing that she undertook any act so that it can be said that she had affection for Bhagyesh. However, to this, on behalf of the mother, it was submitted that mother forwarded letters by post to Bhagyesh, but the same were not accepted and came to be returned back. However, this can never be said to be a good gesture on the part of the mother to express her feeling towards Bhagyesh. It has been submitted on behalf of the mother that even after birth of Bhagyesh till 2007, when both spouses were living together, at that time also by way of strategic move, father started poisoning ears of Bhagyesh and Bhagyesh started nurturing grudge against his mother. It is pertinent to note that till 2007 both the spouses resided together and at that time, mother had all the opportunities to cultivate feelings of love and affection for her in the mind of Bhagyesh. It transpires that before filing the instant petition, mother filed an application for search warrant u/s 97 of the Cr. P.C and as observed by the trial Court, she could not succeed in said attempt. It is submitted that mother instituted two criminal prosecutions against father. In this judgment, at relevant time, it shall be discussed in detail, but at this stage suffice it to say that even for temporary custody of Bhagyesh, the police assistance was also procured. There is no dispute that in such family matters and more particularly when the question is for the custody of minor child, as far as possible neither of the parties should involve police because that creates adverse effect in the tender mind of a minor. It is required to be observed that during the pendency of the proceedings, certain orders were passed for temporary custody of Bhagyesh to be handed over to his mother and considering the report of Valsad City Police Station dated 14/2/2012, five attempts were made to hand over temporary custody of Bhagyesh to his mother, namely on 17/12/2011, 31/12/2011, 7/1/2012, 21/1/2012 and 4/2/2012. Considering the report, it further transpires that even a lady social worker of Mahila Astitva Utkarsh Organization was also called by the police. Considering the report, it transpires that it was Bhagyesh who was not ready to stay with mother and on and often he started crying. It was Bhagyesh who did not show any inclination to go with mother. Because of such behaviour of Bhagyesh, in the report, ultimately police opined that father was not ready to hand over temporary custody to mother. Mr. Gandhi, Ld. Advocate for the respondent father rightly submitted that in the report it was not required for the police to express any opinion, but the duty of police was to report only as to what transacted on those five different dates. Mr. Gandhi, Ld. Advocate for the respondent - father rightly submitted that at every occasion, father complied with the directions and brought Bhagyesh with him, but at the time of actual handing over temporary custody of Bhagyesh to his mother, it was Bhagyesh who started crying and was not ready to go and stay with his mother. This can never be attributed to father that because of his persistent tutoring and ear-poisoning, Bhagyesh behaved like this.

It is true that pursuant to the directions, when the temporary custody of Bhagyesh was handed-over to his mother, Bhagyesh was taken on picnic by his mother to Goa and it has been submitted that Bhagyesh stayed with his mother very comfortably and enjoyed his stay with mother at Goa and for said purpose, certain photographs were shown. To stay happily for temporary period with mother is one thing and to show inclination to stay permanently with mother by Bhagyesh is another thing. On the contrary, his going with his mother to Goa and enjoyed his stay with mother rather rules out the allegation that father was tutoring and ear-poisoning Bhagyesh against her.

On behalf of the appellant - mother, what was highlighted was certain events and conduct exhibited by father during pendency of this appeal. It has been submitted that despite several orders passed by this Court regarding handing over temporary custody to his mother and at-least to smoothly exercise her visitation rights, it was the father who resisted such move on each and every occasion and it was, therefore, submitted that such conduct of father can never be said to be in the welfare of Bhagyesh and such conduct amounting to disobeying judicial orders, disentitles father to permanently keep custody of Bhagyesh. In support thereof, a decision rendered in the case of Gaurav Nagpal Vs. Sumedha Nagpal, was heavily pressed into service. Mr. Shah, Ld. Advocate for the appellant - mother submitted that considering Gaurav Nagpal''s case, almost identical was the situation wherein despite interim orders to handover temporary custody of child to his mother, father disobeyed such orders and even invited action of contempt of Court. It was submitted that in that case, number of litigations and number of appeals rather created torture in the mind of minor child. My attention was drawn to para. 10 in Gaurav Nagpal''s case, wherein Hon''ble the Apex Court highlighted and approved the observation made by the High Court in the impugned order as under:

In view of the facts noticed herein before, the question that exercises this Court''s mind is should the child be permitted to stay with a father, who inculcates fear and apprehension in the mind of minor, against his mother and thwarts court orders with impunity. The answer to the above questions, in my opinion, must be in the negative. The appellant, cannot wish away his role, in the minor harboring such an irrational fear towards the mother. I am conscious of the fact that directing the custody of the child to the respondent, may result in a degree of trauma. However, the daily trauma the child appears to undergo while being tutored against his mother would be far in excess of the trauma likely to be faced while entrusting to the respondent. The minor child must be allowed to grow up with a healthy regard for both parents. A parent in this case, the appellant, who poisons the minor''s mind against the other parent cannot possibly be stated to act for the welfare of the minor.

In light of the above observation, on behalf of the appellant - mother, it was submitted that even in the instant case, the daily trauma Bhagyesh appears to undergo while being tutored against his mother would be far in excess of trauma likely to he faced while entrusting his custody to mother. It was, therefore, submitted that though, for time being, because of persistent tutoring and ear-poisoning made by father, it may feel some inconvenience to Bhagyesh to stay with mother, but said immediate trauma may be far less than the daily trauma Bhagyesh appears to undergo during the pendency of this proceedings.

I have taken into consideration not only the above observation made by Hon''ble the Apex Court, but even facts of said case, as emerged from the said decision. It transpires that it was second marriage of Gaurav Nagpal with Sumedha Nagpal. It was observed that Gaurav''s first wife committed suicide and Gaurav along with his other family members, was facing prosecution regarding unnatural death of his first wife. It further transpires that the fact regarding earlier marriage of Gaurav with his first wife and her suicide within six months of her marriage, was concealed from his second wife - the respondent Sumedha Nagpal. It was further alleged that when the child born out of lawful wed-lock between Gaurav and Sumedha, was aged about 2 years when both, his father and mother started residing separately and mother filed Habeas Corpus Petition when the child was aged about 2 years. Several other litigations were initiated including contempt petition wherein certain strictures were passed against the father. Several criminal proceedings were initiated. It was further averred that even on 1/10/1999 Gaurav kidnapped the minor child. The child was shifted from one school to another at various places in Haryana and Delhi by father. Even it was father who committed repeated defaults in bringing the child on various dates and thereby was willfully disobeying the orders of the competent Court. Ultimately, Hon''ble the Apex Court observed that by flouting various orders leading even to initiation of contempt proceedings, the father has managed to keep custody of a child. He cannot be a beneficiary of his own wrongs.

Considering the facts and circumstances and evidence on record, in the instant case, at the first place, the mother failed to establish a very base of her case that right from the beginning, it was the father who started tutoring and ear-poisoning Bhagyesh against his mother. When the dispute started between Gaurav and Sumedha about the custody of the child, the child was aged about 2 years. The child was born on 15/11/1997 and even on 19/11/2008 when Hon''ble the Apex Court delivered decision in the said matter, the child was aged about 10 years. Moreover, in the instant mater, as stated above, nothing is shown that father was careless about the education of Bhagyesh and he was shifted to one school to another at various places. It is pertinent to note that so far as the character of Gaurav Nagpal was concerned, he and his family members were facing serious criminal prosecution regarding unnatural death of his first wife occurred within six months of his first marriage. The fact regarding first marriage itself was concealed from his second wife Sumedha. In the above background, Hon''ble the Apex Court concurred with the findings of the High Court that the daily trauma the child appears to undergo while being tutored against his mother, would be far in excess of the trauma likely to be faced while entrusting to the respondent. Under such circumstances, considering peculiar facts and evidence on record in Gaurav Nagpal''s case, the said decision cannot be said to be in any respect helpful to the appellant - mother.

As stated above, in the instant matter, so far as the father is concerned, there is nothing that he deliberately failed on any occasion to bring Bhagyesh either to Court or to the house of mother pursuant to certain directions issued for temporary custody of Bhagyesh. As observed in police report referred to above, at every occasion it was Bhagyesh who did not show any inclination to stay with his mother. On behalf of the mother, as stated above, it was highlighted that despite the fact that limited visitation rights were given to her, which she could not enjoy or exercise. As stated above, at present when Bhagyesh is aged about 13 years and is studying in 9th standard, it can safely be said that he is old enough to form an intelligence preference. As observed by the trial Court in the impugned judgment, after the arguments advanced on behalf of both the sides were concluded, Bhagyesh was interviewed by the Ld. Judge of the trial Court in his chamber and it has been observed that Bhagyesh had more love and affection for his father and was not inclined to stay with mother. In the instant matter also, after both the sides advanced their arguments, Bhagyesh was interviewed by me in my chamber in presence of learned advocates representing both the parties on 04/09/2012. During the course of interview, it transpired that he was old enough to form an intelligent preference. He showed his inclination with father. As stated above, though the wish and inclination of child may not be the sole factor to decide his permanent custody, but statutorily the same is one of the factors. When the trial Court as well as this Court come to the conclusion that the welfare of Bhagyesh cannot be said to be in any respect adversely affected if he stays with his father, the wish and inclination of Bhagyesh deserve consideration.

It is pertinent to note that both, father and mother reside in the same city of Valsad. It is submitted that even the distance between their houses is less than one half KM. Their matrimonial tie still remains intact. As stated above, a petition for restitution of conjugal rights u/s 9 is pending between them. Without going deep into the merits of their matrimonial dispute, it transpires that though the welfare of Bhagyesh can well be protected if both, his mother and father stay together. However, apart from this, viewing independently the dispute regarding custody of Bhagyesh, this Court is in complete agreement with the ultimate conclusion arrived at by the trial Court, so also the reasonings assigned by the trial Court while coming to the ultimate conclusion.

As stated above, on behalf of the mother, alternatively it was submitted that though on paper, visitation rights were conferred to mother, even till date barring one or two occasions, the mother could not enjoy and exercise said rights. In this regards, as stated above, the mother filed Civil Application No. 8914/2011 wherein she urged that appropriate action against the father under the provisions of Order 39 Rule 2A of the C.P.C by taken for disobedience and/or breach of the interim order/ injunction. The said application came to be resisted by father by filing detailed affidavit-in-reply and over and above that, the father filed Civil Application No. 1820/2012 wherein he prayed that this Hon''ble Court be pleased to direct the father to present Bhagyesh before this Court and this Court may kindly be pleased to take the custody of Bhagyesh to see that Bhagyesh meets his mother in compliance with the order dated 24/6/2011 passed in this appeal. Vide order dated 24/6/2011 passed in this appeal, by way of interim arrangement, this Court directed that on 1st and 3rd Saturday of every month, the father shall hand over the custody of Bhagyesh to his mother at her residence at 4.00 PM and thereafter, the mother shall return the custody of Bhagyesh to his father on next day at the premises of the father, before 11.30 AM. It was further directed by way of interim arrangement that during Diwali vacation for 1st week the father shall hand over custody of Bhagyesh to his mother and during summer vacation, for two weeks the custody shall be handed over to mother. In the reply affidavit filed by the father in Civil Application No. 8914/2011 filed by the mother, in para. 1 itself, it was contended by the respondent - father that irrespective of his defence, he tendered his unconditional apology to this Court, which may be accepted. Over and above this, in his reply affidavit, he contended that the copy of the order dated 24/6/2011 was made available to him on 14/7/2011. It is further contended that irrespective of the availability of the order, the custody of child for 15 days was handed over to the wife as per the original order of this Court and moment the schools were opened on 13/6/2011, the custody of the child was returned. He further contended that even the desire and wish of Bhagyesh is required to be ascertained. He further contended that on 2/7/2011 he along with Bhagyesh went to the trial Court and handed over custody of Bhagyesh to the Ld. Trial Judge and he had left the Court. Thereafter, the mother came and both, mother and Bhagyesh spent three hours together. It is further contended that though the trial Court did not receive the communication of the order dated 24/6/2011 and, therefore, again on 3rd Saturday i.e. 16/7/2011 the respondent - father had gone to the Court along with Bhagyesh, but on inquiry, it was found that mother had not turned up at all nor anybody had the copy of the order and, therefore, on 16/7/2011 practically for three hours Bhagyesh stayed in the Court and at 6.00 PM, the respondent - father had gone to the Court to collect the custody of Bhagyesh. In the reply affidavit, the respondent - father expressed his apprehension that in light of the two criminal proceedings initiated against him by the appellant - mother, it may be difficult for him to go to the house of the appellant - mother and to handover custody of the child. This would invite other criminal proceedings. It is further pertinent to note that the respondent - father then filed Civil Application No. 1820/2012 in this appeal and as stated above, in that application, he prayed that he be directed to present Bhagyesh before this Court and this Court may be pleased to take custody of Bhagyesh to see that Bhagyesh meets the appellant - mother in compliance with the order dated 24/6/2011. It seems that on 6/3/2012 in Civil Application No. 1820/2012 this Court passed oral order and in the said order, reproduced the earlier order dated 24/6/2011 and ultimately in para. 5 in the said order, it was observed that a suggestion was made by the Court to learned counsel for both the sides that Bhagyesh be kept at neutral place viz in a hostel or such institution as may be decided by the parties. The matter was then posted on 16/3/2012. No any common suggestion came to be made by learned counsel representing both the parties. However, virtually considering the application, so also the prayer made in the application being Civil Application No. 1820/2012, it can safely be said that the said application filed by the respondent - father can be said to be the reply to the application being Civil Application No. 8914/2011 filed by the appellant mother.

In above view of the matter, at this stage, it transpires that it cannot be said that the respondent - father did not take any step to comply with the direction regarding temporary custody of Bhagyesh to be handed-over to appellant - mother. Even as stated above in this judgment and more particularly considering the different reports of police authority, it appears that Bhagyesh was not inclined to stay with his mother. It is true that during temporary custody of Bhagyesh, when mother took him to Goa and then returned back and handed-over custody to father, nothing turns up that Bhagyesh was meted out with any cruel treatment by his mother, but he remained happy with his mother. In above view of the matter and considering the present age of Bhagyesh and the fact that he is studying in 9th standard, both, the trial Court and this Court found that he is old enough to form intelligent preference, it cannot be said that such conduct of Bhagyesh reflects persistent tutoring and ear-poisoning allegedly made by his father against his mother. In the case of Deepti Bhandari Vs. Nitin Bhandari and Another, , wherein regarding visitation rights of a child, in para. 18, while modifying earlier order, respondent No. 1 [father] was permitted to meet minor child Mannat on every Saturday at New Delhi, between 10.00 am and 6.00 pm and Hon''ble the Apex Court specifically observed that "In the event, the child is willing, respondent 1 may also take her out for the day and return her to the custody of the petitioner within 6.00 pm." Mr. Gandhi, Ld. Advocate for the respondent -father, therefore, rightly submitted that even in exercise of visitation rights, the wish and desire and willingness of child is required to be considered, provided he is old enough to form intelligent preference.

On behalf of the appellant - mother, reliance was placed upon the decision rendered in the case of Rajesh Surana v/s. Rekha decided by Madras High Court on 14/11/2008 in Contempt Petition No. 357 of 2008. Considering facts of said case, it transpires that, a visitation right was given to father to meet minor child aged about 6 years between 9.00 am and 5.00 pm on 1st Sunday of every English Calendar month as well as between 2.00 pm and 3.00 pm on every religious festival, the dispute arose as to what should be understood about day of religious festival. On such hyper technicality, the mother deliberately flouted the order regarding the visitation rights. In that case, there was nothing that though in compliance with the order regarding visitation rights, mother actually took the child to hand-over temporary custody to father and the child was reluctant to meet father. In above background, Madras High Court came to the conclusion that a malafide intention is writ large in the willful and deliberate disobedience of the orders of that Court by the respondent. It was further observed that if the litigants are permitted to breach the orders without any lawful excuse or justification, the orders passed by the Courts would become a subject of mockery. In above background, the respondent - mother was found guilty of civil contempt and appropriate order came to be passed by the Madras High Court. Needless to say that in light of the entire above observation, the facts and circumstances in the instant case are totally different. As stated above and as observed by Hon''ble the Apex Court in Dipti Bhandari''s case [supra], even in exercise of visitation rights, the willingness, wish or desire of the child is one of the important factors. However, at the same time, this Court cannot ignore the fact that the appellant is mother of Bhagyesh. It is further pertinent to note that her matrimonial tie with the respondent still continues. Her petition u/s 9 of the Hindu Marriage Act is still pending. It is, therefore, hoped that in future, there are chances of re-union between the two spouses and that would be not only beneficial for their matrimonial life, but even for their son Bhagyesh. However, till stat stage reaches, the Court cannot ignore at-least a visitation rights of the appellant - mother. As stated above, in the impugned judgment and order, the trial Court took into consideration this aspect at the time of dismissing the petition for permanent custody of Bhagyesh filed by the appellant - mother. It appears that in appeal, said order regarding visitation rights came to be temporarily modified on 24/6/2011 and as stated above, the respondent - father was directed to handover temporary custody of Bhagyesh on 1st and 3rd Saturday of every month at the residence of the appellant - mother. It was further directed that during Diwali vacation, the father shall accordingly handover temporary custody of Bhagyesh to his mother for one week starting from 1st day of vacation and for summer vacation, for two weeks starting from 1st day of summer vacation. As stated above, the mother filed Civil Application No. 8914/2011 complaining violation of said order dated 24/6/2011. Considering the facts and circumstances of the case, it transpires that the venue for handing over temporary custody of Bhagyesh by father to mother should be a neutral place and in presence of such authority, in whom both parties shall have faith and respect. As stated above, in the said process, it may not be desirable for Bhagyesh if police authority is involved. Thus, this Court is of the opinion that despite the fact that the trial Court disposed of the petition, but continued its supervision so that the visitation rights conferred upon the mother by the trial Court can smoothly be exercises in the trial Court itself and in the presence of the Ld. Presiding Judge. Despite the fact that the proceedings before the trial Court came to an end and at the time of dismissing the petition, the trial Court conferred visitation rights to mother till Bhagyesh attains majority. In the decision rendered in the case of Rosy Jacob Vs. Jacob A. Chakramakkal, Hon''ble the Apex Court observed that all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changes conditions and circumstances, including the passage of time, the Court is entitled to carry such orders if such variation is considered to be in the interest of the welfare of the wards. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation and hence no question of estoppel can arise in such cases. In above view of the matter, this Court thinks that while confirming the impugned judgment and order rendered by the trial Court, the order regarding the visitation rights passed by the trial Court also deserves to be confirmed. As stated above, considering the facts and circumstances of this case, the neutral venue for exercise of visitation rights, at this stage, appears to be the trial Court itself.

In above view of the matter, the instant appeal deserves to be dismissed. The order regarding the visitation rights passed by the trial Court in the impugned judgment and order deserves to be upheld and both the parties shall comply with the said order. It is hereby further directed that the Ld. Addl. District Judge, with a view to see that the order dated 30/6/2010 passed in Misc. Guardian Application No. 26/2008 regarding the visitation rights conferred upon the appellant - mother can be duly and truly exercised by the mother, the Ld. Trial Judge can take assistance of Bailiff or any Official of his Court, but in no case, the assistance of any police machinery should be taken, irrespective of the order exh. 153 passed by the trial Court in the said matter and referred to by the trial Court in the impugned judgment and order. For smooth compliance with the order regarding visitation rights, the trial Court shall be at liberty to take assistance of any learned advocate, preferably a lady advocate practicing in that Court and who is not connected with any litigation between the appellant and the respondent. In above view of the matter, the appeal deserves dismissal. Since the appeal accordingly stands disposed of, Civil Application No. 8914/2011 and Civil Application No. 1820/2012 also deserve dismissal. However, since the SLP is pending before Hon''ble the Apex Court, the disposal of these civil applications shall be subject to any final outcome that may be arrived at by Hon''ble the Apex Court in the SLP. For the foregoing reasons, the appeal and above civil applications stand dismissed. There shall be no order as to costs.