1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Civil Application No.941 of 2010 IN Writ Petition No.10823 of2009 Chitra Vasant Shirsat .. .. Applicant v/s. Bhalchandra D. Korgaonkar .. Respondent Mr.R.T.Lalwani with Mrs.S.I. Jayakar (Lalwani) for Applicant. Mr.Rahul Nerlekar for Respondent. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 12th April, 2010 P.C. : 1.This is an unfortunate dispute between ununderstanding parents. The access of the child given to the father in vacations and weekends is sought to be modified. It need hardly be said that the welfare of the child is the only factor to be considered by the Court. The mother of the child has stated, in the Family Court and in the above Writ Petition filed earlier in which I passed the order dated 4.1.2010, that the child falls ill so soon as the father gets access to the child at week-ends. It was her case that after all the week- 2 ends when the child returns from the father, he falls ill. He is required to be hospitalised and medical expenses are required to be met. That reason was an excuse for the mother to avoid giving access. 2.The access was nevertheless directed. The child must get love of both the parents. The access, I am told, has been complied as ordered on 4.1.2010 except on one week-end. The father has not made any grievance about that one default. 3.The child has returned after several accesses which were to be given on the 1st and 3rd Saturdays of each month, after 4.1.2010. Consequently, the access was given in the week-ends of 16th_17th January 2010, 6th, 7th February, 20th_21st February and 20th_21st March 2010. After 21st March 2010, there has been no week-end access. 4.The vacation has begun. Under my order dated 4.1.2010, the father was given the first 50% of the summer vacation to have access to his child. That order has been breached. The access is not given to the father. Instead a Special Leave Petition in the Supreme Court has been filed. 5.In this Civil Application for modification of my order 3 dated 4.1.2010, the mother has tendered before the Court a medical certificate and medical papers relating to the alleged illness of the child on 4.3.2010 when the child is stated to have been admitted to Ashwini Hospital. It is alleged that the child had to be hospitalised because of the illness of the child that took place whilst the child remained in the custody of the father. The last week-end when the father had access to the child before this hospitalisation was the week-end of 20th_21st February 2010. Admission of the child in the hospital is, therefore, after 11 days. Discharge Summary of the hospital, which is otherwise illegible, shows inter alia a malarial antiger, which is shown to be negative. Consequently, it appears that what was wrong with the child was not known and some test was performed. The report of the hospital of 3.3.2010 inter alia shows lower respiration duct infection. These are the only 4 words on which the Advocate of the mother has relied upon. He contends that the child constantly suffers from infection and illness and is required to be hospitalised and this access works to his detriment. 6.The application as well as the evidence produced in support of the Application does not show anything of the kind. The application only shows an act to make the excuse. The evidence only shows that whatever may 4 have happened with the child was when the child was in the custody of the mother. 7.In my order dated 4.1.2010, the order of access granted by the Family Court was essentially upheld save and except one part of the order which related to the vacation access. 8.Although otherwise the order of access was the usual order granting access to both the parents as is required for the welfare and proper upbringing of every child, the vacation access was seen by me to be rather unusual. The learned Family Court Judge had granted vacation access for one week each to the parents. The vacation, I am told, is of 75 days. The vacation has already begun and as aforesaid, the order is already breached. Nevertheless, a vacation of 75 days would have about 10 to 11 weeks when the child, like a chattel, would have to be shuttled back and forth between the two warring parents. The history of this case is itself illustrative of the fact that the child would be mishandled in such tug-of-war. The vacation access in the order in the Writ Petition has been simplified to allow each parent to have the child for 50% of the vacation as is done in most cases. This would enable the child to live with one parent for a reasonably long period of time so as to get settled 5 without anxiety and nervousness and without being required to be shuttled back and forth. Since this case has shown the history of the mother constantly making excuses and constantly complaining about the illness of the child, the father was given the first 50% of the summer vacation. 9.The Advocate on behalf of the mother has claimed in the Writ Petition and claims now that the child suffers from food poisoning and other digestive disorders because the father, who lives alone, gives the child outside food. 10.It is common knowledge and judicial notice is required to be taken of the fact that the children have to be given immunity. The mother contends that outside food lowers the immunity and she has been so advised medically. It may be mentioned that such medical advice is contrary to reason and the usual society s experience of development of immunity. 11.50% vacation access initially given to the father during which the father would have access to the child for at-least 5 weeks and the child would have peace from being shuttled at-least 4 times, which otherwise would take place, is sought to be modified. The delayed filing of the SLP before applying for modification is 6 an effort at breaching the order of vacation access granted to the father in the first half of the vacation. The only modification that may be justified, which would be subject to the order of the Apex Court, in this application made after applying in the Apex Court, is to grant the father the last half of the vacation, which is still available for grant. 12.The Application is not only lacking in bona fides but, given that it will very seriously affect the child, smacks of mala fides. I do not know of any mother, leave aside the sacrificial mother, who would bring upon her own child so much mental havoc. 13.The Application for modification is dismissed with costs, fixed at Rs.10,000/-, condition precedent. (SMT.ROSHAN DALVI, J.)