(1) (9) WP 4535/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 4535 OF 2011 Amit Arvind Brahme .. Petitioner Vs. Pooja Amit Brahme .. Respondent Mr. R. T. Lalwani for the Petitioner. Mr. D. B. Sawant a/w. Megha P. Rane for the Respondent. The Respondent along with her 2 children is present. CORAM : MRS. ROSHAN DALVI, J. Date : 4 th JULY, 2011. P.C. 1. The husband has not come to India as requested by his Counsel on 27th June, 2011 because he has not been able to obtain leave from work in Canada. There is, therefore, no question of considering the mode of access to be given to the husband as claimed by him at present in continuation of the order passed on 27th June, 2011. 2. The husband is, of course, entitled to access. Such access cannot be claimed by him as a matter of any statutory right. The husband is only a guardian for his children. The guardianship denotes obligations to be met, duties to be performed and acts to be done for the benefit of the children. Thereafter in the welfare and for the interest of the children to have the company and care of both the parents, access right of a nature depending upon the facts of each case can be carved out. 3. In this case the wife is essentially a single mother. The parties were settled in Canada. She has left Canada and is residing in India. The husband continues to reside and work for gain in Canada. Who was at fault in the separation can be decided only upon (2) (9) WP 4535/11 evidence in the main Petition between the parties. Pending that decision the access can be claimed and granted. 4. The husband claimed access and was allowed to have access once a month during a weekend in India. The husband is unable to come each month. The husband has come twice. He claims that he was not able to obtain access. This was because the children were not amenable to such access. The children have been interviewed by the child Counsellor. A report in that behalf has been filed. The children would require further counselling to get them to be amenable to spend some happy moments with their father. Of course it is in the interest of the children to be given such upbringing that they are amenable to meet both the parents. It is for the mother to strive to work in that behalf. The attitude of the children would reflect the upbringing of the mother but it would also reflect various other aspects which only the child Counsellor would be able to decide from an interview with children. The Court would not be in a position to do that as that is not the aptitude of the Court. The Court would have to go by the efforts and ultimate opinion of the child Counsellor. For that purpose the children would have to be brought before the Child Counsellor as directed and required by the Child Counsellor. This, of course, would be required to be done only if and when the father is actually available to obtain the access that he claims. If the father himself is absent, no further effort is required in that direction. 5. The father cannot attend the Court each time. (3) (9) WP 4535/11 He has been unable to attend the Court rightly because he could not obtain leave. It would not be possible for the father to obtain leave each month also just to obtain access which he claims. Yet the father would be entitled to come to India whenever feasible and to obtain the access. This is only because it would be in the welfare of the children to get exposed to their father. However, this exercise cannot be done mechanically or as a matter of course or at the dictates of the father. So soon as the father comes to claim access, he himself must be interviewed by the Child Counsellor. Once that exercise is through, the children may be called by the child Counsellor as required by her. Then the access which has already been directed may be given in the best and most suitable circumstances. It may even be opined to be modified by the Child Counsellor in the best interest of the children. 6. The father has been given vacation access also. Once the shorter weekend access is worked out, the vacation access may also be taken or given as the circumstances would permit. Modalities also would be best opined by the Child Counsellor. 7. Mr. Lalwani states that the husband would be able to come to India in the first week of August, 2011. After the husband comes to India, he shall go for interview before the Child Counsellor. The child Counsellor shall interview the husband as also the wife and the children, if required, singly or jointly. The Child Counsellor shall then work out the modalities of the access to be given to the husband as directed by the Court earlier. (4) (9) WP 4535/11 8. Whilst the husband has been away in Canada, the mother (his wife) has shifted the children from the school in Chembur to a school in Baroda where she has shifted. Mr. Lalwani argued that pending the Petition and pending the permission of the Court such an act could not have been done by the wife. It is correct that in normal circumstance, this act could be done only with permission of the Court. However in this case the mother alone cares for the children and has their custody. The father, as his evident today, is not even able to come to India. Such a father is, therefore, in no position to dictate to his wife who is a single mother for all practical purposes for the education and upbringing of the children. It is common knowledge that real estate value of the properties in Baroda are far less than in Mumbai. The cost of living is similarly lower in Baroda than in Mumbai. If the mother has shifted the children malafide and the malafides are prima facie shown the Court would make such orders as required for the children. No such malafides are shown in this case except the grievances as stated above. 9. The father is living in Canada. He would have to come to India to obtain access. It would make little difference whether he comes to Mumbai or Baroda to obtain access. Under these circumstances at this stage the wisdom and the discretion of the mother need not be challenged. 10. The children have been shifted to another school. Transfer certificate is required from the school in Mumbai. (5) (9) WP 4535/11 11. The School in Mumbai was injuncted from issuing the transfer certificate pending the father’s arrival. The father has been unable to arrive. The children’s education cannot be jeopardized. Their admission to the new school is to be secured. The Transfer Certificates shall therefore have to be given by the earlier school. 12. Mr. Lalwani also shown that the children were irregular in the earlier school and their examination result is shown to be poor. This may one of the reasons why the mother have may deem fit to change the children’s school. If the father had shown that the children did brilliantly the status quo would have had to be maintained. The children cannot be restrained from attending a new school where they may do better. It would for the mother to see that their progress improves. The access rights and other orders would be dependent on how well and efficiently the mother carries out her duties. With these observations the following directions are passed. 13. If the father comes to India in the first week of August, 2011, he shall attend before the Child Counsellor for his interview. The child Counsellor shall interview the father. The Child Counsellor may also require to interview mother and the children. If that is required, the mother shall come along with children to the Child Counsellor for interview. That interview may be held jointly as also singly by the Child Counsellor with all the parties. 14. The access that is already ordered shall be (6) (9) WP 4535/11 given such as to make it smooth for the children. The mother shall not prevent the access of the children to the father or work against their interest in any manner. The children shall be given access from time to time as would be feasible upon the father’s attendance or presence in India, such that a meaningful access is provided to allow both the father and the children to meet without stress. 15. The access shall be given initially in Mumbai as directed by the Child Counsellor at the time of the interview of all the parties. The access shall thereafter be given such as to make it comfortable and convenient for the children. It would be for the father to visit the children and not demand that the children visit him. 16. After the weekend the access is settled for some time, the parties shall work out the modalities for the vacation access. That would be a step towards the joint custody of the parties. 17. The Principal/Head Master of the school in Chembur shall issue the Transfer Certificate for the children as per the application made by the mother. The observations of the learned Judge from the report of the Child Counsellor that the children have adjusted in Baroda and whether the school is good or bad cannot be decided at this stage is correct. Hence the with the above observations and directions the Writ Petition is dismissed. (ROSHAN DALVI, J.)