(1) WP 3071/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 3071 OF 2011 Dr. Punam Navare .. Petitioner Vs. Dr. Mahendra Navare .. Respondent Mrs. Manjula Rao for the Petitioner. Mrs. C. S. Savithri for the Respondent. CORAM : MRS. ROSHAN DALVI, J. Date of reserving the Order : 15 th JUNE, 2011. Date of pronouncing the Order : 21 st JUNE, 2011. ORDER 1. The Parties are husband and wife. They have separated since May, 2009. They have one daughter Swar who is 17 years old. The parties are Surgeons. They work in Jaslok Hospital. The Petitioner-wife left India for Bahrain after their child completed school education in Standard X. She took the child with her. She admitted her child to a school in Bahrain for Standard XI studies. 2. There have been ugly disputes between the parties with regard to the custody and access of the child. There are number of complaints made by the Petitioner-wife with various police stations in that behalf. There has also been correspondence between the Advocates of the parties in that behalf. The wife has further relied upon certain conversation which has come to be tape recorded on a C.D. The husband has relied upon a complaint made by the child to Malbar Hill Police Station stating that the mother does allow her to meet (2) WP 3071/11 the father. This is the evidence which would be considered by the learned Judge taking up the application for access/custody of the child. 3. The parties desired to file a divorce petition by mutual consent. Both parties had certain conditions. The conditions could not be met. Consequently the husband sued for divorce. Several interim applications have been taken out by both the parties. This Court is concerned only with the aspect of access and custody. Certain orders have been passed in that regard by the Family Court, Mumbai. The order dated 14th February, 2011, has been challenged by the Petitioner-wife. 4. There are a number of directions and orders passed by the Court. The relevant orders relied upon by the Counsel on behalf of the wife must be considered. The wife had custody of the child. The husband applied for access to the child. The access was not granted. The wife remained absent on certain dates of hearing. The husband made a grievance to the Court by way of an application dated 27.01.2011 that the wife had not appeared in Court on 06.12.2010 and 16.12.2010 despite service. She appeared on 07.01.2011 without bringing the daughter to the Court. He made a grievance in a written application that the daughter was not produced even on that date. He referred to the complaint made by the daughter to the police station regarding meeting him. He also complained that the Respondent was in Mumbai and had attended Jaslok Hospital and consulted with her patients on 25.01.2011 (which was two days prior to the date of the application). This was in response to the case of the wife that she was not in Mumbai and left for (3) WP 3071/11 Baharain. 5. The learned Judge passed certain directions on the application of the husband. These were to direct the Respondent to state on oath whether she and her daughter were in Mumbai on that date and to produce her daughter on 04.02.2011, the date to which the Petition was adjourned. 6. On 04.02.2011 the wife did not appear in Court. The wife did not produce the daughter as directed also. Her father filed an affidavit as her constituted attorney. Though the affidavit is signed by the father it shows the statements of the wife herself. The affidavit is not signed by the wife. She stated about taking of an assignment. She stated that she had left India to join the assignment. She made grievance about an ex parte order obtained by the husband without service upon her Advocate. She stated that her daughter was admitted in School. She did not give the particulars or the name of the School. She refused to bring the daughter to the Court on the ground that the daughter had “her final exams soon”, she was unable to get leave, it would “financially impact” her and her daughter would be “disturbed and distracted” from her study. Parties filed various affidavits on 04.02.2011. The Court directed the wife to file an affidavit relating to the child on the next date. 7. The Respondent filed an affidavit on 09.02.2011 affirmed before the Indian Embassy in Baharain. She inter alia stated that her daughter was to appear “for her final exams soon”. She again refused to produce the (4) WP 3071/11 daughter before the Court for the same reasons. She did not state the date of the exams. 8. The matter between the parties came up before the Court on 14.02.2011 when the impugned order came to be passed. 9. The impugned order is not an order granting or denying access. It does not adjudicate upon that issue. It shows that it is the continuation of order dated 27.01.2011 regarding directions given to the Respondent to file an affidavit about her leaving Mumbai and to produce her daughter in the Court. This aspect is factually correct. The order shows the affidavit filed by the wife without mentioning the date of the examinations. This aspect is also factually correct. The order further shows that the Counsel on behalf of the wife stated that the date of examinations was not yet declared. The learned Judge observed upon this argument that all reputed schools declare their time-table in advance. The learned Judge further stated that these examinations are usually in the month of March which is also factually correct. The learned Judge has minutely observed the vague statements of the wife in her affidavit about the fact that the daughter was to appear for “final examination soon” and had not stated that the examination schedule was not declared by the school. This is not only factually correct but a correct appreciation of the affidavit of the wife. The learned Judge, therefore, concluded that when there are daily flights from Bahrain to India, the child could be produced “for one day before the Court”. (5) WP 3071/11 The learned Judge took into consideration that both the parties are doctors being Plastic Surgeons and therefore in easy financial circumstances. The learned Judge, therefore, again directed the child to be produced before the Court on the next date of hearing. 10. Mrs. Rao, Advocate on behalf of the wife took strong exception to the order. It is impossible to find out which part of the order can be taken exception to. An application filed by the husband was before the Court. The wife failed to appear twice. She appeared thereafter. The daughter, who was then 15-16 years old, was not brought to Court. She was directed to be produced before the Court. An affidavit was called for to make specific statement on oath. The both directions were not complied. The affidavit filed was vague. The learned Judge correctly observed on the vagueness not only with regard to what was not stated in the affidavit but with regard to what reputed schools do. The learned Judge did not even commence hearing the application for access or custody. 11. Various allegations made by the parties with regard to that aspect were to be considered. The child was not of tender years. She is capable of deciding for herself with which parent she might like to stay. She had to be interviewed. The learned Judge sought to do only that. The interview of the child in such a case is imperative. Only upon interview the allegations made by both the parents could have been adjudicated as to their truthfulness. The wife who is financially independent and who chose to leave India to take up assignment in (6) WP 3071/11 Bahrain took the child with her without the slightest hesitation with regard to the expenses for that purpose. She neither informed her husband nor requested finance for the expense of the travel. The learned Judge was, therefore, right in directing her to bring her back. That was required for interview, as the learned Judge has specified, for but one day before the Court. An application of the kind made by the husband could never have been decided without interviewing the child in view of the various ugly allegations made by the wife against the husband which had to be verified and decided upon. The direction to produce the child is a direction given by the Court as any other direction such as the direction to produce a document or to file an affidavit etc. Such a direction has not disposed of any application. Such a direction cannot cause prejudice. None is shown. 12. It may be mentioned that, in fact, Counsel on behalf of the party himself or herself as an Officer of the Court must guide, advise and prevail over their clients to obey directions of the Court so that the application could be decided on its merits. Failure to do so would in fact tentamount to failure to assist the Court as its Officer. 13. Though it is not a part of the affidavit of the wife dated 04.02.2011 or 09.02.2011, it appears to have been argued before the Court that the child could be brought to India only if the Petitioner paid the travelling charges. Husbands are required and directed to pay travelling charges to wives or children who, due to financial inability, cannot attend the Court to prosecute their Suit or defend the husbands’ Suit. This (7) WP 3071/11 is not one such case. The Court is not wrong in not complying with that condition. However it may be mentioned that when this Petition was strenuously urged before this Court also, Counsel on behalf of the Petitioner-wife only made grievance about the Court passing an order without hearing the parties and stating why the daughter can never be produced before the Court. She did not offer to bring the daughter even now requesting the Court to direct the husband to pay travelling expenses. 14. It may be mentioned that in February, 2011 the child was to have her “final examination soon”. Examination would, therefore, have been over since long. Even after the examination is obviously over the Petitioner-wife has persisted in refusing to bring the child to Court. 15. The Petitioner-wife has relied upon an application made by the wife before the Family Court on 27.01.2011 to permit her father as her constituted attorney to sign documents on her behalf. The learned Judge has passed an order on that application also on 14.02.2011. That order shows that the husband as well as the wife’s Counsel were heard. The learned Judge has directed that that application would be considered after the Respondent complied with the order to produce the child before the Court. The learned Judge directed that until that compliance, the application would be kept pending. It is indeed the correct strong order which deserved to be passed. As aforesaid the wife failed to appear twice. She appeared on 07.01.2011 and was counselled. She failed to appear on 27.01.2011. She (8) WP 3071/11 filed her affidavit on 04.02.2011 and 09.02.2011. She failed to produce the child on 04.02.2011 as directed on 27.01.2011. The matter was argued on 14.02.2011. On 14.02.2011 the husband as well as Counsel for the wife were heard and the impugned order was passed. It is gratifying to note that the learned Judge sternly disallowed the application of the Respondent-wife whilst she refused to follow the directions of the Court. 16. The challenge to the impugned order is wholly misconceived and completely mischievous. In fact the Writ Petition is completely malafide. It is made only with a view to defeat the rights of the husband/father to obtain access to his daughter and to delay the proceedings. 17. The Petition is dismissed. The Petitioner/ wife shall comply with the order dated 14.02.2011 and produce her daughter before the Family Court on the next date of hearing. (ROSHAN DALVI, J.)