: 1 : cwp-3679-11.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.3679 OF 2011 Sou. Priya Milind Mangle .. Petitioner v/s. Milind Suresh Mangle .. Respondent ......... Mr. A.B. Vagyani with Mr. Sachin Patil for the petitioner Mr. V.P. Patankar for the respondent ......... CORAM : R.Y.GANOO, J. DATE : 5th MAY, 2011 P.C. : 1. This petition came to be filed on 4th May, 2011 i.e. yesterday. Today morning, learned Counsel appearing on behalf of the petitioner prayed for production of the papers today at 3.00 p.m. as he wanted to apply for appropriate orders qua the impugned order dated 2nd May, 2011 passed below Exh.14 in Interim Application No.101 of 2011 in M.J. Petition No.A-907 of 2009. That request was granted. Production was allowed. The respondent is represented before this Court through learned advocate Mr. Patankar. 2. Heard learned Counsels on both sides. The respondent herein filed M.J. Petition No.A-907 of 2009 in the Family Court at Bombay for : 2 : cwp-3679-11.doc divorce. In the said petition, the respondent has filed Interim Application No.101 of 2011 at Exh.14. A perusal of the said application at Exh.14 goes to show that the respondent wanted the learned Judge of the Family Court to pass appropriate orders for access and or custody of the two children. The prayers set out in the said application at Exh. 14 are of a wide nature. The petitioner herein had filed affidavit-in- reply. It is noted that below said application at Exh.14, the learned Judge of the Family Court on 2nd May, 2011 passed an order by allowing the said application to a limited extent. The learned Judge of the Family Court granted overnight access of both the minor children namely Shardul and Riya to respondent from 4th May, 2011 from 8.00 a.m. till 11th May, 2011 till 5.00 p.m. This Court has informed that Shardul is aged about 10 years and 6 months and Riya is aged about 7 years and 6 months. Both the children are enjoying summer vacation. The arrangements were made to pickup the children from the children complex of the Family Court at Bombay. The respondent was allowed to keep the children with him. He was allowed to take the children out of Mumbai but not out of India without prior permission of the Court. The learned Judge of the Family Court has specifically observed in the operative part that the aforesaid order is passed without prejudice to the rights and contentions of both the parties and the question of regular access is kept open. It is also ordered that the respondent is at : 3 : cwp-3679-11.doc liberty to move the Court with proper application for regular access at appropriate stage. This order dated 2nd May, 2011 is challenged by the petitioner. 3. Learned Counsel appearing on behalf of the petitioner contended that the learned Judge of the Family Court has granted overnight access to the respondent without taking opinion from the children. He further contended that the overnight access is granted not for 1 or 2 days but for a period of 8 days and therefore the said access ought not to have been granted. He further submitted that the learned Judge of the Family Court has permitted the respondent to take the children out of Bombay though there was no specific prayer in the application at Exh. 14. Learned Counsel for the petitioner had therefore submitted that the impugned order is wrong and is required to be set aside. 4. Learned Counsel Mr. Patankar appearing on behalf of the respondent supported the impugned order by contending that the children are grownup and that the respondent has a right to be in the company of children and vice versa and that is how the impugned order is passed in the correct manner. He further submitted that the other questions are left open and the impugned order is without prejudice to rights and contentions of the parties. Learned Counsel Mr. Patankar : 4 : cwp-3679-11.doc submitted that the impugned order should not be interfered by this Court as all questions are left open and the learned Judge has granted access only for a period of 8 days during the ensuing May vacation. 5. In an enquiry with learned Counsel Mr. Patankar as to whether the respondent is interested in taking the children out of Bombay, if the Court passes an order in that behalf, learned Counsel Mr. Patankar informed the Court upon instructions from the respondent, who is present in the Court that the respondent would take the children to Mahabaleshwar, if at all the respondent wants to take the children out of Bombay. 6. I have given anxious consideration to the points involved in the matter. I have perused the application at Exh.14 and the reply thereto. I have also perused the impugned order. A perusal of the impugned order goes to show that the learned Judge has passed the impugned order after considering the fact that the respondent has a right to take the children with him for few days. Learned Judge of the Family Court has made following observation while passing the order which goes to show the frame of mind of the learned Judge. The observation is as under. “To develop love and affection between both the minor children : 5 : cwp-3679-11.doc and father without prejudice to the rights and contentions of both the parties the order of interim access needs to be passed”. 7. It is required to be noted that the learned Judge has applied his mind in a proper direction and has thought it fit to give an opportunity to the respondent to come nearer to the children and try to develop a better relationship with the respondent. It is noted that on account of matrimonial dispute between the petitioner and the respondent, the children are unable to get parental affection from the respondent. Learned Judge of the Family Court has tried to remedify the said situation by allowing the respondent to take away the children with him. In my view, the impugned order does not require any interference. 8. It was submitted by the learned Counsel for the petitioner that the learned Judge of the Family Court has not interviewed the children though it was requested to do so. According to learned Counsel for the petitioner since the children were not interviewed the impugned order is bad and requires interference at the hands of this Court. So far as the argument of learned Counsel for the petitioner that the learned Judge of the Family Court has not interviewed the children / has not taken opinion of the children before passing the order, I am inclined to observe that it is not as if that in every case before granting access for a brief period, the learned Judge of the Family Court is required to take : 6 : cwp-3679-11.doc opinion / interview of the child, particularly when no circumstances are shown against the respondent to have the overnight access. Interview of the child may be necessary in peculiar facts and circumstances and in what case interview of the child should be taken can be left to the discretion of the concerned Judge. It is not necessary to lay down guidelines in that behalf. Looking to the facts and circumstances of this case and the ages of the Shardul and Riya, I hold that the impugned order cannot be faulted merely because the children were not interviewed. Looking to the impugned order, it is seen that the learned Judge was not making arrangement regarding residence of both the children on a permanent basis. The learned Judge wanted to provide overnight access to the respondent for limited period that too during ensuing May vacation to establish rapport between respondent father and his son and daughter respectively. Looking to the ages of the children it can be observed that the children are not of tender age and capable of understanding effect of events taking place in their life on a day today basis. 9. Learned Judge of the Family Court has permitted the respondent to take the children out of Bombay during the period of access which were granted from 4th May, 2011 to 11th May, 2011. The argument advanced by learned Counsel for the petitioner that as the respondent : 7 : cwp-3679-11.doc has not specifically asked for taking the children out of Bombay during the vacation, the learned Judge of the Family Court ought not to have passed said order. I am not inclined to accept this submission. If the main order namely allowing the respondent to take away the children from the mother cannot be faulted upon, surely, order allowing the children to take out to Bombay cannot be faulted. Shardul and Riya are permitted to be taken by the respondent during May vacation. A father who gets access under orders of Court may like to take the children out of Bombay to enjoy the said access in a better atmosphere, show some new places to the children, take the children to historical places and allow them to grow. In my view, the permission given by the learned Judge of the Family Court to the Respondent to take the children out of Bombay is not something unusual. Surely, the learned Judge has taken care that the children should not be taken out of India and that is manifested by words “he shall not take them out of India without prior permission of the Court”. This will clearly go to show that the learned Judge has taken care that the children do not cross boundaries of India without permission of the Court. In my view, learned Judge has considered the matter from all angles and passed reasonable order in the facts and circumstances of the case. He has kept all contentions open and a reading of the order dated 2nd May, 2011 will clearly goes to show that the learned Judge is going to decide all the questions raised : 8 : cwp-3679-11.doc in application at Exh.14 and then pass a detailed order. It is clear to me that the impugned order is passed keeping in view the ensuing May vacation. Learned Judge has taken a reasonable approach namely he realized that if the respondent is not provided with access during May vacation, the question of giving overnight access to be enjoyed in vacation would get postponed to Diwali vacation. A reading of the said order goes to show that this order operates for the relevant period namely 4th May, 2011 to 11th May, 2011 and the merits of the entire matter are left to be determined by the learned Judge naturally after giving appropriate hearing to both the parties. In substance, I do not find any fault in the impugned order. The same is required to be confirmed. 10. It is to be noted that the impugned order came to be passed on 2nd May, 2011. According to the learned advocate for the petitioner, he received a copy of order on dated 3rd May, 2011. He filed this petition challenging the order dated 2nd May, 2011 and he moved the learned Judge of the Family Court for stay of the operation of order dated 2nd May, 2011 and the stay came to be granted till 7th May, 2011. This will mean that the order is not followed by both the parties and that is how today i.e. on 5th May, 2011 the respondent is without the custody of the children. In such a case, I am now inclined to fix a new period for : 9 : cwp-3679-11.doc access to be enjoyed by the respondent. At the same time, I am inclined to make arrangement to pickup the children from the children complex of the Family Court and see that they are returned to the petitioner at the children complex so that taking of the children and returning of the children back to the petitioner takes place in the smooth manner. A fear was expressed by the petitioner that the children may not accompany the respondent and go out of the children complex. In so far as this aspect is concerned, I am inclined to make an arrangement to see that if for some reasons the children decline to go along with the respondent at the children complex, the parties will have to approach the learned Judge immediately and move the learned Judge for appropriate orders so that the learned Judge can hear the petitioner and the respondent and or their learned advocates and pass appropriate order. 11. For the reasons mentioned aforesaid following order is passed. ORDER (i) Order dated 2nd May, 2011 is correctly passed and I hold accordingly. The period of access will have to be changed in view of the peculiar facts and circumstances. Accordingly, it is hereby ordered that the petitioner shall arrange to bring the children Shardul and Riya at the children complex at Family Court at : 10 : cwp-3679-11.doc Mumbai on 11th May, 2011 at 10.30 a.m.. The petitioner shall entrust the children to the respondent at children complex along with necessary clothes and other articles which would be required by the children to have a comfortable stay with the respondent for the period of about 8 days. The respondent shall pickup the children from the children complex at about 10.30 a.m. on 11th May, 2011 and take away the children to his home at Bombay. (ii) The respondent is permitted to take the children to Mahabaleshwar if at all he wants to take them out of Bombay. If at all the respondent wants to take the children out of Bombay, the respondent shall inform about it to the advocate on record of the petitioner the programme of the respondent namely date on which he wishes to leave Bombay and on which date he plans to come back to Bombay. He shall also inform to the advocate for the petitioner the name and address of the lodge where the respondent will be residing with the children. Learned Counsel for the petitioner in fairness gave an undertaking to the Court that petitioner shall not visit the children at Bombay or at Mahabaleshwar. The undertaking given by the learned advocate for the petitioner is accepted. : 11 : cwp-3679-11.doc (iii) The respondent shall return the children to the petitioner at children complex, Family Court at Mumbai on 18th May, 2011 between 10.30 a.m to 11.00 a.m. The Counsellor at the children complex, Family Court at Bombay shall note the various developments which will take place at the time of handing over of the children to the respondent. If the children smoothly go to the respondent, he/she shall take note of the same. If the children decline to go to the respondent, he/she shall immediately take note of the same and shall submit a report before the learned Judge of the Family Court No.5 about what transpired at the children complex. If the children refuse to go with the respondent on 11th May, 2011 as per the above arrangement, the respondent to move the learned Judge, Family Court No.5 and the learned Judge shall pass appropriate orders after giving hearing to petitioner and respondent and / or their advocates. (iv) The petition stands disposed of in the above terms with no order as to costs. It is to be noted that the order is passed in the presence of learned advocates for the respective parties as as also the petitioner and the respondent. It is clarified that this Court has not expressed any views on the points which are yet to be decided. : 12 : cwp-3679-11.doc (v) Order by which the order dated 2nd May, 2011 was stayed till 7th May, 2011 is set aside and the parties will be governed by this order. (R.Y.GANOO, J.)