1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1 OF 2010 PARSI SUIT NO.6 OF 2009 Zubin F. Homavazir .... Plaintiff No.1. V/s Hufrish Z. Homavazir ..... Plaintiff No.2. Mrs Taubon Irani for plaintiff No.1 Ms. H. Tavadia with Mr. H.V. Kode for plaintiff No.2. Ms Freny Homavazir, grandmother of the child is present. CORAM: V. M. KANADE, J. DATE : 18TH FEBRUARY, 2010 (In Chambers at 5.00 P.M.) P.C.:- 1. Heard the learned Counsel appearing on behalf of Plaintiff No.1 and Plaintiff No.2. 2. This Notice of Motion is taken out by Plaintiff No.1 seeking an access of the minor son from 30th April, 2010 till 30th May, 2010 and also to permit the mother of Plaintiff No.1 to collect the child from Plaintiff No.2 on 30th April, 2010 and return the child to Plaintiff No.2 on 30th May, 2010 and also to direct Plaintiff No.2 to handover passport of the minor child. 2 3. Plaintiff No.1 had filed a suit for divorce by mutual consent and, accordingly, decree of divorce was passed. Consent Terms dated 18/12/2009 were also filed and it was directed that the Consent Terms should form part of the decree. In the Consent Terms, it is agreed between the parties that the custody of the son shall be with Plaintiff No.2 and that the Plaintiff No.1 can take his son to his residence at Pune or Mumbai every alternate Friday at 4.00 p.m. and bring him back on the following Sunday at 4.00 p.m. Plaintiff No.1 was also permitted to take him to Pune or at Mumbai for long week ends. In clause 3 of the Consent Terms, it was agreed that Plaintiff No.1 could have access to the minor son for 50% of all holidays. In clause 9 of the Consent Terms, it is provided that if Plaintiff No.1 desires to take his child for vacation outside the country, he shall apply to the Court. Clause 9 of the Consent Terms reads as under:- “9. In the event the Plaintiff desires to take the child for vacation outside the country, the Plaintiff shall apply to the Court and the Defendant shall agree to the same upon suitable terms and conditions set by the Court. In such eventuality, the Defendant shall hand over the passport of the child to the Plaintiff and the Plaintiff shall return the passport to the Defendant on arrival in India.” 4. Plaintiff No.1 is now working in Munich, Germany and, therefore, has filed this Notice of Motion seeking leave of this Court to take his son to Munich Germany for a period of 30 3 days. He has stated that he shall, therefore, be not in Pune or Mumbai for a period of one year from January, 2010. He has also stated that his mother shall take his son from Plaintiff No.2 and travel with him to Munich, Germany and stay there till 30th May, 2010 on which date his mother shall return the child to Plaintiff No.2. 5. Plaintiff No.2 in her affidavit in reply has stated that Plaintiff No.1 has not stated the exact location and address where he wishes to take their son. In para 13 of the affidavit-in-reply, Plaintiff No.2 has stated that Plaintiff No.1 may be allowed access to the parties’ son Sarosh from 1st May 2010 to 19th May 2010 subject to the following conditions which are mentioned in para 13(a) to 13(j). “13 In view of all that I have stated above, I submit that the plaintiff may be allowed vacation access to the parties’ son Sarosh from 1st May 2010 to 19th May 2010 on the following terms and conditions. The Plaintiff may also be directed to file the following documents before this Honourable Court alongwith an affidavit: a) The defendant may be allowed to take the parties’ son Sarosh to Germany in the course of vacation access from 1st May 2010 to 19th May, 2010. b) The plaintiff files before this Honourable Court a certified copy of a visa granted to him, his mother and the parties’ son for entry into Germany. c) The plaintiff files before this Honourable 4 Court the address and landline and cellphone numbers of the place of residence at Germany where the plaintiff proposes to keep the parties’ son during the vacation access, and / or any other place where the plaintiff may take the parties’ son for touring. d) The plaintiff files before this Honourable Court a Certified Copy of the assignment order issued by his current employer posting him at Munich. e) That the plaintiff undertakes to facilitate telephonic communication of the parties’ son Sarosh, with the defendant atleast once a day at a mutually convenient time. f) The plaintiff files before this Honourable Court the address and telephone numbers of the Indian Consulate in Germany and / or any other place where the plaintiff may take the parties’ son for touring. g) The plaintiff files before this Honourable Court the name and address of his current employer at Pune, Mumbai and at Germany. h) The plaintiff files before this Honourable Court a certified copy of the return ticket of the child and the escort of the child along with the PNR numbers of the tickets. i) The plaintiff and his mother file before this Honourable Court an undertaking and a bond that they shall be personally responsible for the safe return of the parties’ son Sarosh to the defendant, at the end of the period of vacation access. j) The plaintiff and his mother file before 5 this Honourable Court an undertaking and a bond that they shall be personally responsible for the return of the passport of the parties’ son Sarosh, in good condition, to the defendant, at the end of the period of vacation access, at the airport at Mumbai at the time of hand over of the minor child to the defendant.” 6. The learned Counsel appearing on behalf of Plaintiff No. 1, after taking instructions from plaintiff No.1’s mother has stated that she is willing to comply with the conditions (b) to (h) of para 13. So far as condition Nos. (i) and (j) of para 13 are concerned, the leaned Counsel submitted that Plaintiff No.1’s mother is willing to give an undertaking that she will bring back the son of the Plaintiffs and hand over custody to Plaintiff No.2. So far as clause 9 is concerned, the learned Counsel urged that custody of the son may be granted for a period of 30 days since Plaintiff No.1 would not be in a position to avail of custody of the son during Diwali and Christmas vacations. 7. After having heard both the Counsel at length, I have personally interviewed the child and I have noticed that the child is willing to go to Germany to stay with his father. In the past also, Sarosh, the son of the Plaintiffs, has resided separately with Plaintiff No.1 and with his grandmother at Pune and Mubai. Plaintiff No.1’s mother also will be accompanying the minor Sarosh from Mumbai to Munich, Germany and back and will be staying with her son i.e Plaintiff No.1 during that period. Since, there is a specific 6 clause namely clause No.9 under which both the parties have agreed that Plaintiff No.1 could take their son Sarosh for vacation outside the country with the leave of the Court and since in principle Plaintiff No.2 has no objection to send the child Sarosh to Plaintiff No.1 for vacation upto 19/5/2010, subject to conditions laid down in clause 13 of the affidavit- in-reply being followed by Plaintiff No.1, in my view, Plaintiff No.1 can have an access to his son Sarosh for a period of three weeks instead of four weeks, as demanded by Plaintiff No.1. The mother of Plaintiff No.1 shall accompany Sarosh to Munich, Germany and shall stay with her son – Plaintiff No.1 and grandson during this period. Plaintiff No.1 shall comply with the conditions laid down in para 13(b) to (h). Plaintiff No.2 shall handover passport of the minor Sarosh to Plaintiff No.1 or his mother and shall co-operate with completion of visa formalities. Undertaking given by the Plaintiff No.1’s mother that she will bring back the child and handover custody to Plaintiff No.2 on her return from Munich, Germany is accepted. Plaintiff No.1 and his mother may bring back the child before a period of three weeks as permitted, if they deem it fit and proper. It is clarified that the said period of three weeks can be extended for a day or two only depending on the availability of the tickets. 8 In the result the following order is passed:- 7 ORDER In my view, it would be appropriate if the child is permitted to go and meet his father for a period of three weeks in the month of May, 2010. The exact period of three weeks would commence from 1st, 2nd or 3rd of May 2010, depending upon availability of air-tickets. The child will be permitted to visit his father who is at the moment staying at Munich, Germany. Plaintiff No.2 shall co-operate with the grandmother of the child who is in Mumbai for the purpose of obtaining visa and passport of the child and for the purpose of singing visa form or any other documents for the purpose of obtaining visa clearance. Plaintiff No.1 may bring back the child if he finds that child is not comfortable or wants to come back to his mother before a period of three weeks is over. In that case, necessary steps would be taken by the plaintiff No.1 and or his mother who is accompanying the child and would be staying with her son and grandson. The grandmother of the child undertakes to bring back the child after a period of three weeks is over. Undertaking given by the grandmother of the child is accepted. Notice of Motion is disposed of. (V.M. KANADE, J.) 8