1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY C IVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 309 OF 2009 WITH CIVIL APPLICATION NO. 157 OF 2010 IN FAMILY COURT APPEAL NO. 25 OF 2010 Surjit Bhupendra Chandra Balomajumdar .. Applicant. V/s. Smt. Rimli Ranjeetkumar Basu .. Respondent. Mr. J. Shekhar i/b M/s J. Shekhar & Co. for the Applicant. Mr. Hemant P. Ghadigaonkar for the Respondent. CORAM : A.M. KHANWILKAR AND A. A. SAYED , JJ. DATED : 18TH JUNE, 2010. P.C. 1 Heard the learned Counsel for the parties. In so far as Civil Application No. 309 of 2009 is concerned, the same is for stay of operation and implementation of Judgment and Order passed by the Family Court, Pune, dated 27th August, 2009. By the said order, the Family Court dismissed the petition filed by the applicant-husband for custody of children under Section 26 of the Hindu Marriage Act. In that view of the matter, the question of staying the operation and implementation of that order does not 2 arise. The relief as claimed in this application, in our opinion, cannot be granted. Hence, this Civil Application shall fail. 2. However, in so far as Civil Application No. 157 of 2010 is concerned, it is prayed by the applicant-husband that during the pendency of the appeal the applicant be allowed to continue the custody of the elder son Ritvik. It is further prayed that the applicant be granted access to meet younger son Riddhijit, who is presently in custody of the respondent-wife. It is then prayed that the applicant may be allowed to take younger son Riddhijit to Kolkotta for Diwali, Dashehara, Holi, Summer Vacation and for the other festivals. We would first deal with the last relief of allowing the applicant to take younger son to Kolkotta on the specified occasions. We are not inclined to grant this relief at this stage. That is so because the order, that we propose to pass, in our opinion, would meet the ends of justice. 3. In so far as the relief of allowing the applicant to continue the custody of elder son Ritvik during the pendency of the appeal is concerned, we are inclined to accede to this prayer as the said arrangement was observed during the pendency of the proceedings before the Lower Court in terms of the order dated 5th December, 2005, passed by the Family Court. It is not in dispute that the custody of the elder son Ritvik is with the applicant-husband at least since the Family Court allowed the said prayer in terms of order 3 dated 5th December, 2005. To that extent the applicant is justified in requesting for allowing him to continue the custody of the elder son Ritvik during the pendency of the appeal. The resistance by the respondent-wife is on the argument that even the Lower Court has noticed that the applicant tried to influence the elder son to write letter, which was the basis to allow the custody of the elder son in terms of the order the order dated 5th December, 2005. The argument though attractive, does not commend to us. In as much as, the fact remains that the custody of the elder son has remained with the applicant at least since December, 2005, pursuant to the order passed by the Family Court. There is no material on record to indicate that the applicant has not looked after the elder child properly or has ignored his education prospects in any manner. 4. The next grievance made on behalf of the respondent was that the applicant took away the child to Kolkotta. However, this grievance clearly overlooks that after mutual consent decree of divorce was passed, the applicant in the first place moved the Family Court for interim custody of the children. The trial Court after considering the matter acceded to the relief claimed by the applicant at least to the extent of interim custody of the elder son Ritvik. It is not in dispute that the applicant as well as respondent were staying separately since May 2005, although in the same complex (society). It is also not in dispute that the applicant is in service. 4 According to the applicant, he was transfered from Pune during the pendency of the proceeding before the Family Court and in view of the order dated 5th December, 2005 he was justified in taking the elder son Ritvik along with him to Kolkotta, where he has been transferred. The applicant continues to stay at Kolkotta on account of his job as well as because his aged parents are also at Kolkotta. The applicant therefore, had no option but to take elder son Ritvik along with him to Kolkotta. In the circumstances, as aforesaid we are inclined to grant relief in terms of prayer clause (b) as prayed by the applicant which shall operate during the pendency of the appeal. 5. In so far as prayer clause (c) of providing access to meet younger son Riddhijit during the pendency of the appeal is concerned, that relief is being granted on condition that the applicant while availing of access to meet younger son Riddhijit at Pune, shall ensure that he is accompanied by his elder son Ritvik. That will not only facilitate the applicant to get access of younger son but also provide opportunity to the respondent-mother to have access to meet the elder son Ritvik and besides that both the brothers would also get opportunity to be together at least for a short duration. Such arrangement in our opinion would meet the ends of justice. In the circumstances, prayer clause (c) is granted on the above conditions. 5 6. The applicant who is present in Court assures that whenever he would visit Pune to avail of access to meet younger son Riddhijit, he would ensure that the elder son Ritvik is also accompanying him and access of the elder son will be provided to the respondent-wife contemporaneously and as far as possible the applicant would ensure that even the two brothers get opportunity to meet and share the enjoyment of being together for a while. Applicant further undertakes to give advance intimation of his visit to Pune to the respondent at least 3 clear days notice. Undertaking so given across the bar is accepted. We hope and trust that the respondent will extend full cooperation to comply with the abovestated arrangement in its letter and spirit. 7 We accordingly pass the following order. (i) Civil Application No. 309 of 2009 is dismissed. (ii) Civil Application No. 157 of 2010 is allowed in terms of prayer clause (b) and (c) on the above terms with no order as to costs. (A.A.SAYED,J.) (A.M. KHANWILKAR, J.)