1 CAM : 190 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL APPLICATION NO. 190 OF 2010 IN FAMILY COURT APPEAL NO.185 OF 2007 Ellaham Nensey ........ Applicant B.D. Road, Mumbai' Vs. Muhammed Nensey, ........ Respondent Goregaon (E), Mumbai Mr. R.G. Merchant Advocate for applicant. Mr. A.Y. Sakhare, Senior Counsel with Mr. N.V. Bandivadekar, Advocate for respondents. Coram : A.M. Khanwilkar & Smt. R.P. SondurBaldota, JJ. Date : 27th December 2010 PC : ( Per Smt. Justice R.P. SondurBaldota ) 1. This is an application for modification of the judgment and order dated 6th May 2010 passed by this court in Family Court Appeal No.185 of 2007. 2. The factual background of the application is as follows : The applicant is the mother of the minor Omar and the respondent is his father. In the year 1998, when Omar was 11 months old, the applicant had filed Custody Petition No.13 of 1998 in this Court and sought his custody from the respondent. By the interim order dated 10th September 1998 passed in the petition, 2 CAM : 190 of 2010 the respondent was directed to handover custody of Omar to the applicant pending the petition. The challenge to that interim order resulted into consent terms dated 19th November 1998, by which, both the appeal as well as the custody petition came to be finally disposed off. The consent terms provided that custody of Omar shall remain with the applicant and the respondent will have access to him as under : (A) The Appellant shall be entitled to keep the minor child Omar with him on every weekend from 2.00 p.m. on Friday to 7.00 p.m. on Sunday. The Appellant will personally or through his authorised representative collect the minor child Omar from the residence of Respondent no.1 at 2.00 p.m. on each Friday and deliver him back to the 1st Respondent's residence at 7.00 p.m. on Sunday. Such arrangement to commence from the date hereof. (B) The parties agree and confirm that in addition to clause 1(A) above, until the minor Omar starts going to school, the Appellant and Respondent no.1 shall be entitled to take the minor child Omar together for a holiday for a fortnight in every three months. In case Respondent no.1 is unable or unwilling to accompany the Appellant and the child, the Appellant shall be entitled take the child alone. In case of any difficulty the parties shall be at liberty to apply. ( C) After the minor child Omar starts going to School, the Appellant shall be entitled to keep the minor child 3 CAM : 190 of 2010 Omar with him and take the minor child Omar out for a period equivalent to half of the School vacations.” (emphasis supplied) 3. Five years thereafter the respondent filed Petition No.D-11 of 2003 in the Family Court for a declaration that he is the permanent guardian of Omar and for his permanent custody. That petition was allowed by the Family Court by its order dated 7th August 2007. 4. Being aggrieved by that judgment and order, the applicant challenged the same in this Court by filing Family Court Appeal No.185 of 2007. In the appeal, the applicant filed Civil Application No.267 of 2007 for interim custody, which was decided by the order dated 6th May 2008. The interim order directed that the custody of Omar shall remain with the applicant until the end of the academic year. After the academic year ended, the respondent was to secure admission for Omar in any good school near his residence and the interim custody of Omar was then to be transferred to the respondent. As regards the visitation rights, it was directed that the applicant shall have access to Omar from Friday, 4 pm to Sunday, 4 pm. and “vacations will be shared equally by both the parents”. In other words, the earlier arrangement made for access to the respondent and custody during weekend and vacations was continued for the applicant. 4 CAM : 190 of 2010 5. The appeal filed by the applicant was finally heard and disposed off by the judgment and order dated 6th May 2010. The appeal was dismissed with a clarification that “the present arrangement which grants access to the appellant-mother and directs the minor to stay with her at the week ends made under the interim order, shall continue unless altered by an order of the Court”. Since the order did not specifically refer to the sharing of vacations by both the parents, the present application has been filed by the applicant for modification of the judgment and order dated 6th May 2010 for permitting the applicant to share half of the vacation of Omar with the respondent. 6. Mr. Merchant, the learned counsel for the applicant submits that throughout the pendency of the proceedings for custody of Omar, the arrangement for access to him by either of the parents has been same. When the custody was with the applicant, the respondent had access at the weekends and when the custody has been with the respondent, the applicant had access for the weekends and both the parents were to share the vacation equally. This arrangement had worked smoothly without any hitch, since the year 1998. This was also the interim arrangement during the pendency of the appeal. Therefore, the directions contained in the final judgment and order dated 6th May 2010 as regards continuation of “present arrangement” granting access to minor 5 CAM : 190 of 2010 Omar must be deemed to have included sharing of vacations though the same has not been specifically mentioned in the order. He also submits that it would be in the interest of welfare of Omar as well as in the interest of justice that the modification as sought by the applicant is granted. 7. Mr. Sakhare, the learned Senior Counsel for the respondent opposes the application submitting firstly that the same is in the nature of review of the judgment and order dated 6th May 2010 for which there is no case whatsoever made out in the application. Mr. Sakhare secondly submits that the judgment and order dated 7th August 2007 of the Family Court does not provide for sharing of vacations by both the parents. It only provides for “holiday part of the week”. The challenge to that judgment by the applicant does not include grievance as regards sharing of the vacation. There is no ground in the memo of appeal relating to this aspect of the matter. Therefore the application is beyond the scope of appeal and not maintainable. He submits thirdly that once the appeal has been finally disposed off, this Court has become functus officio and as such cannot make any alteration to the judgment and order. 8. On careful consideration of the submissions advanced by both the sides, we are unable to accept the submission of Mr. Sakhare that the present application is in the nature of review of the judgment and order dated 6th May 2010. In our opinion in the 6 CAM : 190 of 2010 facts and circumstances of the case, what the application really seeks is mere clarification of the judgment and order and not even its modification. Therefore we find no impediment whatsoever in considering the application on its merits. 9. Perusal of the record shows that when the custody of Omar remained with the applicant from the year 1998 till May 2010, the respondent had enjoyed access over the weekends and also equal sharing of the vacations without any difficulty whatsoever, pursuant to the interim orders passed by this Court referred to in the preceding paragraphs. After the grant of interim custody to the respondent in the present appeal, the identical arrangement was made for access to the applicant. Thus the arrangement of access to Omar over weekends and sharing of vacations continued for 12 long years without any difficulty or complaint from either of the parents. In the circumstances, it would be difficult to accept that the Court intended to permanently deny the applicant, access to Omar during vacations. Therefore, the direction as regards continuation of “present arrangement” of access to the applicant must be deemed to include the access during vacations by way of sharing of the vacations. This interpretation would be justified for one more reason i.e. the best interest of the child. There can be no doubt that for the wholesome development of a child, it needs to have love and affection of both the parents. 7 CAM : 190 of 2010 10. Our attention has been drawn to the last paragraph of the judgment and order in order to foreclose consideration of the present application. The last paragraph reads as follows : “We make it clear that if there is any conflict between this judgment and the consent terms dated 19-11-1998 filed in Appeal No.947/98 arising out of Custody Petition No.13/98, this judgment shall prevail over the consent terms. In view of this clarification, Civil Application No.9/10 is also disposed of.” The reference to this paragraph is irrelevant as we don’t find any conflict between the consent terms and the judgment. Further it is obvious from the paragraph that the clarification therein was issued in view of Civil Application No.9 of 2010 by which the respondent had sought leave of the Court to remove Omar out of India during the period of school vacation. The consent terms specifically provided that Omar will not move out of India except with leave of the Court. 11. Mr. Sakhare then submits that during the weekdays, Omar being busy with his school, studies and tuitions, he hardly has any time to spend with the respondent. On the week ends, when there is no school, Omar is with the applicant. Therefore, if the respondent has to share the vacations with the applicant, she should be asked to give up atleast half the weekends of the year. 8 CAM : 190 of 2010 Mr. Merchant on the other hand submits that on the weekends, Omar is not completely free of the studies as he has to attend the tuitions at home. In our opinion there cannot be any mathematical calculation about sharing of time with the child. Therefore, we find no substance in this argument either. 12. Hence, the application is allowed. It is clarified that the arrangement as regards access to the mother granted in the judgment and order dated 6th May 2010 includes equal sharing of the vacations made under the interim order. 13. After the order was pronounced, Counsel for the Respondent prayed for stay of operation of this order. The Applicant who is present in-person submits that since the last date of hearing of the matter, she has not been able to get access of Omar even on telephone. His telephone number is switched off. Insofar as this grievance is concerned, it will be open to the Applicant to take recourse to appropriate proceedings, as may be advised. 14. Insofar as prayer for stay of operation of our order pronounced today is concerned, we find no reason to accede to that request. The same is rejected. We make it clear that the order pronounced today will come into effect forthwith and would apply to the present winter vacation which has 9 CAM : 190 of 2010 commenced from 23rd December, 2010 and would last till 3rd January, 2011. The parties shall act on the basis of this order as aforesaid. (Smt. R.P. SondurBaldota, J.) (A.M. Khanwilkar, J.)