:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3330 OF 2008 WRIT PETITION NO. 3330 OF 2008 WRIT PETITION NO. 3330 OF 2008 Sheetal Ravi Pittie ..Petitioner versus Ravi Shrikant Pittie ..Respondent Mr. Mohan Pungalia i/b. Mr. S. S. Kanetkar for the Petitioner. Mrs. Seema Sarnaik i/b. Ameya Tamhan for the Respondent. CORAM : A. A. KUMBHAKONI, J CORAM : A. A. KUMBHAKONI, J CORAM : A. A. KUMBHAKONI, J (VACATION JUDGE) (VACATION JUDGE) (VACATION JUDGE) DATE : 20TH MAY, 2008. DATE : 20TH MAY, 2008. DATE : 20TH MAY, 2008. ORAL ORDER : ORAL ORDER : ORAL ORDER : . In happy homes with the dawn of school-vacations starts planning and preparation for travel-trips to exciting destinations for enjoying family-vacations. In broken homes, where parents are fitting virtually a war over custody of their children, with the dawn of school-vacations starts planning and preparation for trips to family and other courts for fitting another bitter round of court battle over temporary custody of innocent children on the pretext of sharing vacations with them. It will not be too much to say that every litigation is unfortunate but such litigation that :2: involves innocent small kids in true sense is ’most unfortunate’. In all probabilities these tiny tots do not even know firstly as to why their parents are fighting with each other and secondly as to why should their parents fight over sharing of vacation of their children, which otherwise is ’supposedly most happy period’ of their schooling. These children are truly unfortunate as they have to spend their ’supposedly most happy period’ of the year in helplessly watching a worthless battle tirelessly fought with vengeance at its peek by their parents to torn off and consequently spoil their much much awaited as also well-deserved vacation. 2. This is another matter of similar kind where husband and wife are fighting over the custody of two minor daughters. Without getting involved into very many facts which are always available in abundance in Matrimonial cases, let me refer to only few facts that are essential to dispose of this matter finally at the admission stage itself, by consent of parties. 3. Rule. Rule made returnable forthwith by consent of both the sides. Heard for final disposal in view of very nature of controversy involved in :3: the matter. 4. The marriage took place between the warring parties (as they are today), on 25.11.1995. The elder daughter Riya was born on 25.12.2000 and younger daughter Kyra was born on 24.2.2004. Admittedly, since 22.8.2005 both the spouses are staying separately. It is contended that there was a re-union in June 2006 followed by another separation from 12.1.2007. On 1.6.2007 Application under Section 25 of the Guardians and Wards Act, 1925 was filed by the Respondent herein for custody of both the daughters. In that Application, an Order was passed on 20.10.2007 which is at page 236 of the petition, whereby the Respondent was permitted to have access to both the children on 2nd and 4th week of each month i.e. 2nd Saturday and Sunday and 4th Saturday and Sunday in between 11.00 a.m. to 5.00 p.m. Certain consequential order was also passed, with which we are not concerned in the present proceeding. 5. As set out hereinabove, with the ensuing December Vacation started another round of litigation between the parties trying to torn off the vacation of their innocent daughters between the :4: father and the mother. Resultantly, an order was passed by the Family Court, Pune, on 24.12.2007 whereby the Respondent was granted temporary custody of both the daughters from 11 a.m. to 5 p.m. from 26.12.2007 to 30.12.2007. Again, some consequential order was passed, with which we are not concerned in the present proceeding. 6. As I have said in the very beginning of this order, at the dawn of present summer vacation, the Respondent again filed an Application at Exhibit 104 in the pending custody proceedings seeking over night custody of the minor daughters for half of the vacation. The application was opposed by the petitioner by filing a reply. The Family Court heard both the sides and by its Order dated 8.5.2008 has allowed the aforesaid application Exhibit 104 of the Respondent and thereby has permitted the Respondent to have temporary custody of both the daughters for a continuous period of 10 days commencing from 22.5.2008 to 1.6.2008. The Respondent is thereby allowed to take custody of both the daughters at 11 a.m. on 22.5.2008 and has been further directed to drop them back to the resident of the present Petitioner - wife at 11 a.m. on 1.6.2008. The wife - present Petitioner being :5: aggrieved and dissatisfied by the aforesaid Order dated 8.5.2008, whereby over night custody for 10 days is granted of both the daughters has approached this court by the present proceeding. 7. I have heard both the learned counsel appearing on behalf of the parties at some length. I gave them some time to sort out the dispute if possible amicably keeping in view the paramount interest of the daughters of both the parties. Fortunately, both the parties were present in Court and have assisted the learned counsels for trying to work out the temporary arrangement for the ensuing vacation. Since attempts failed, I have heard both the learned counsels on merits and I am disposing of this Petition with the following observations and consequent directions. 8. The record of the present petition demonstrates that in the first place the respondent never had over night access by virtue of an order of a court. First time over night access to both the daughters has been granted to the Respondent by the impugned order. The impugned order virtually directs both the daughters to stay overnight with the father (and without the mother) at a stretch for :6: continuous period of 10 days. 9. It is worthwhile to note that reliefs were sought for by the Respondent on two earlier occasions before the Family Court, for over night custody of both the daughters. On both the occasions, Family Court refused to grant over night custody to the Respondent. The learned counsel appearing on behalf of the Respondent points out that Writ Petition No. 962 of 2008 is pending with this Court whereby the Respondent has impugned these orders refusing to grant over night access to the Respondent of both the daughters. Be that as it may. 10. An important development that has occurred in the meanwhile is that both the parties have agreed to refer the matter to the Mediator. Accordingly, an order has been passed by this Court on 11.4.2008 in the group of Revision Applications, with leading Revision Application No. 140 of 2009. I have been informed that the learned Mediator is out of station on account of summer vacation and that the parties had agreed vide Minutes of Order dated 11.4.2008 that the issue of custody of children during summer vacation will be decided by :7: the Family Court, Pune. Accordingly, the Family Court has decided the issue vide order dated 8.5.2009, which is impugned in the present proceeding. 11. It is needless to state that in such matters the only consideration can be the interest and welfare of the minors. Neither the father nor the mother as of right can claim and get even the temporary custody of minor daughters unless it is found to be in the best interest and welfare of the minor children. 12. As set out hereinabove, the Respondent has never been given over night access by an order of a Court till passing of the impugned order dated 8.5.2008. The learned counsel appearing on behalf of the Respondent draws my attention to the contentions raised in the Affidavit in Reply in the present proceeding whereby it is tried to be demonstrated that before the matter entered the court precincts, the Respondent was enjoying over night access of both the daughters. It is not possible for me, at this juncture, to hold one way or the other since it will be a disputed question of fact that will have to be decided in the pending :8: trial. 13. The Trial court has passed the impugned order on the basis of photographs of both the daughters relied on behalf of the Respondent before the trial court. In my view, the interest and welfare of the children cannot be determined by having a look at the photographs. The photographs cannot conclusively prove what is in the best interest and welfare of the daughters and therefore I am not inclined to accept this reasoning of the learned trial Judge given in support of the impugned order. 14. Second reason given by the learned trail Judge in support of its order, impugned by the present proceeding is that only because the mother is having the temporary custody of both the daughters, the petitioner father being the natural guardian cannot be denied to have temporary custody of the daughters during the period of vacation. This observation looses sight of the basic approach needed to be adopted in such kind of proceeding which is that one has to look into only and only the interest and welfare of the minors and not the rights and liabilities of warring parties. :9: 15. The only observation from the impugned order which has some substance is that the daughters must be able to spend some qualitative time with their father. I am in agreement with the said observation of the learned trial Judge. However, I think it will not be proper to grant over night custody at a stretch for a continuous period of ten days, for the first time after the matter has entered the court precincts, especially when during the course of last about one year two attempts of the Respondent to have such orders of having overnight access have failed. There can be no manner of doubt that for spending some qualitative time with their father both the daughters need to stay with the father for a longer time than office hours like 11 a.m. to 5 p.m. I think in the interest of minor daughters, they also should enjoy the company of their father and we must begin somewhere. 16. It has been correctly submitted by the learned counsel appearing on behalf of the Respondent that inspite of the several allegations and counter allegations made by the Petitioner and the Respondent against each other, not even a single allegation is made by the Petitioner against the :10: Respondent in as much as the behaviour and conduct of the Respondent with the two minor daughters is concerned. In other words, the conduct and behaviour of the Respondent with his two minor children in issue has been without any doubt and/or objection of whatsoever kind. Thus, there is every reason at this stage to prima facie hold that the aforesaid two minor daughters fear no danger of any kind whatsoever at the hands of their father - the Respondent. 17. During the course of arguments when a specific query was put to the learned counsel appearing on behalf of the Respondent by the Court, as to why was the Respondent seeking over night custody, the reply of the counsel for the Respondent was that the father intends to take minor daughters to a nearby place for a change such as Lonavala or Mahableshwar (admittedly the parties are staying at Pune). In my view, the expectation of the Respondent to do so, being father of the two minor daughters to lived with him till January, 2007 cannot be doubted and/or objected. Considering the travel time it will take for the Respondent to go to these nearby places for a change with the two minor daughters, in my view, it will be just and proper to :11: allow the Respondent over night temporary custody for few nights. I must also mention here that upon an objection raised by the Petitioner, about the absence of the female member at the house of the Respondent, the learned counsel for the Respondent clarified that the mother of the Respondent was very much there staying with the Respondent at his house and in any case the Respondent will have his sister or some other female member of his family with him during the period of two nights for which I am proposing to give over night custody of the two minor daughters to the Respondent. I appreciate the concern expressed by the counsel for the Petitioner that looking at the tender ages of both the daughters, the Respondent should have some female member of his family present all the time with the two minor daughters for the period for which temporary custody is being handed over of these minor girls to the Respondent, their father. 18. I am also of the view that for the two minor girls the company of the father atleast for a limited period to spend qualitative time with him is necessary. In my view, it is very much in the interest and welfare of these two minor girls in issue to also enjoy qualitative time of their :12: vacation with their father with whom they have stayed since their birth atleast till January, 2007. 19. In my view, therefore balance can be struck by allowing the father to have temporary custody of both the minor daughters for a period of not more than 2 nights 3 days at a stretch. The period for which the custody has been granted by the impugned order is from 22.5.2008 to 1.6.2008. In my view the father can take the custody of the daughters on Friday at around 11 a.m. and drop the daughters back to the residence of the Petitioner - wife on Sunday around 5 p.m. For the remaining days arrangement can be made on the similar lines as directed by the orders passed by the court on earlier occasions to the effect that the father can have access during the period 11 a.m. to 5 p.m. Since the daughters are having vacation, I am inclined to extend the deadline of 5 p.m. by couple of hours. 20. Considering the over all facts, circumstances of the matter and especially keeping in view, the best interest and welfare of both the daughters who are aged 7 and 4 respectively, I pass the following Order: :13: ORDER ORDER ORDER 1. The present Writ Petition is partly allowed. The Order passed by the Judge, Family Court No.1, Pune, dated 8.5.2008, below Exhibit 104 in P.D. 94/2007 is hereby modified in following terms : (i) The Respondent is permitted to have access to both the daughters Riya and Kyra from 11 a.m. to 7 p.m. on 22.5.2008. (ii) The Respondent shall have the temporary custody of both the daughters Riya and Kyra from 11 a.m. on 23.5.2008 till 5 p.m. on 25.5.2008. (iii) The Respondent - father shall be permitted to have access of both the daughters from 11 a.m. to 8 p.m. from 26.5.2008 to 1.6.2008. 2. It is clarified that this order shall operate for the present summer vacation and as I have set out at the very threshold of the present :14: Order, parties are at liberty to prepare for next round of litigation with the dawn of next vacation. In case if such occasion arises in future, the trial Court will decide the issue of custody and access on its own merits. 3. As the order is passed in open court, especially in presence of both the parties as also both the respective counsels (who have also explained the order to their respective clients in detail), the parties will not insist upon production of certified copy of this order for its implementation. This is made clear as it may not be possible for the parties to have certified copy of this order immediately on account of ongoing vacation of even this Court. 4. Rule answered accordingly. (A. A. KUMBHAKONI, J.) (A. A. KUMBHAKONI, J.) (A. A. KUMBHAKONI, J.)