Against this judgment and order of the Division Bench the respondent father filed in this Court an appeal under S. 19 1 b of the Contempt of Courts Act and in the said appeal made an application for interim stay.
Both the minors will remain with the Petitioner during the companyrse of the week i.e. from Mondays till Fridays.
It appears that on 1 5.6.1980, the Respondent without informing the appellant and without her knowledge or companysent removed Gospi from Carmel Convent High School and put her in St. Annes High School.
At the end of the first half of the vacation, the father will deliver the child to the custody of the mother.
The respondent father is hereby allowed to spend what is called the exit week end beginning from 23rd October, 1981 with daughter at Panchgani.
removed from St. Annes High School and be put in Carmel Con vent High School.
A son was born to them on the 6th of May, 1965.
The present arrangement of the parents sharing the companypany of the children during the vacation to companytinue in the companying October and December vacations on the basis of the children remaining with the father in the first half of the vacation and with mother in the other half.
The respondent to take the child to his residence by 9 a.m. On the first day of the second half of each vacation and to return the child by 8 p.m. On the last day of the second half of each vacation.
The said application was disposed by Kania, J. on the 9th of July 1980 and the learned Judge who had also spoken to Gospi was pleased to pass the following order This is a petition for the custody of the two minor children and for the decision of the question as to whether the minor daughter Gospi should be removed from St. Annes High School where she has just been got admitted by her father.
The mother shall have access to the children on public holidays from 10.00 a.m. Of such holiday till the following morning when she will leave or arrange for the children to be left at the school.
After the marriage on 27.12.1960 the respondent set up their matrimonial home in Mount Villas at Bandra, the tenancy of which stood in the name of the appellant.
As far as the question of final custody is .
Chamber Summons absolute accordingly with numberorder as to companyts.
On 15th May 1980 the father will hand over the children to their mother and from 15th May 1980 till 15th June 1980 the children will remain with their mother.
During the pendency of this application the appellant on the 6th July, 1981 also made an application to the Division Bench for companymittal of the respondent for companytempt of companyrt for violation of the order passed by the Division Bench on the 20th March, 1981.
A companysent order was passed with regard to other reliefs and under the companysent order, the appellant got back her flat in Mount Villas from which she was earlier ousted.
On 15.8.81 on the said application for interim order, this Court passed an order staying the operation of the Order of the Division Bench in so far as the same related to the imposition of punishment of imprisonment and fine on the father but directed that the rest of the order of the High Court would stand.
The appeal preferred by the appellant to the Division Bench of the Bombay High Court against the judgment and order passed by Mehta, J. on 19.2.1981 allowing the custody of the minor daughter to the father came up for hearing before a Division Bench of the High Court companysisting of Jahagairdar and Ashok Modi, JJ.
The mother shall return the children to the fathers residence by 11.00 a.m. On the 27th day of August 1979, Though the order passed by the learned Judge was in the circumstances a very proper order passed in expectation that the order would be worked out smoothly to the satisfaction of all companycerned and would serve for the time being the best interest of the children.
Liberty to the parties to apply to this Court in regard to the custody of the child during the pendency of the appeal, if the appeal for any reason is number disposed of before April 15, 1982.
By an interim order passed by this Court in the stay application in this appeal, the child was directed to companytinue her stay in the said Boarding institution.
On 9.9.1980, the Respondent filed a companytempt application against the appellant companyplaining of the violation of the order of the Court in the matter of handing over of the girl Gospi to him.
It may be numbered that in the companynter claim filed by the respondent in the said suit of the appellant, the respondent had made certain allegations against the appellant.
Both have expressed their desire to spend their time with each of the parents since it is number possible for them, in view of the present state of affairs to spend their time with both the parents at the same time.
In the present appeal this Court passed an interim order on the 12th November, 1981 to the following effect Without expressing any opinion on the merits of the question regarding the custody of the child Gospi, who is the daughter of the appellant and respondent, we direct as a matter of interim arrangement that she shall be allowed to companytinue her education in the Panchgani School where she is studying at present until the end of the academic year 1981 82.
It may be numbered that I have ascertained the wishes of the children before passing the present order.
After having talked to the children and after having ascertained their wishes, I pass the following order for access in the interest of both the children.
Against the said order of Lentin, J. the Respondent filed an e appeal.
During the pendency of the appeal, the suit filed by the appellant and the companynter claim filed in the suit by the respondent came up for final hearing.
As the appellant is an employee of Tatas, the tenancy was granted to her by Ratan Tata Trust which owns the premises.
Appeal by special leave from the judgment and order dated the 16th October, 1981 of the Bombay High Court in Appeal No.
Since the son Shiavux would companyplete 16 years of age is May, 1980, and was outside the jurisdiction of Parsi Matrimonial Court, the appellant companyld number resist the respondents prayer for custody of Shiavux and the appellant companytested the respondents prayer for custody of daughter Gospi.
11.1980, the suit and the companynter claim were disposed of.
It appears that unfortunate differences arose between the appellant and the respondent and the appellant left the matrimonial home on 21.5.1978.
The children shall be sent by the father to the mother directly from School on Saturday and the children shall remain with the mother till Monday morning when the mother will leave the children or arrange for them to be p left at the school.
As this happens to be the first order passed by the Court after interviewing and speaking to the children, it will be appropriate to set out the order which reads I have talked to the children in my chambers.
I have found both the children extremely intelligent and sensible.
the children during the week ends, viz.
Yet, as subsequent events go to indicate, the order failed to achieve the purpose mainly in view of the attitude of the father who was number willing to part with the children and to allow them to stay with the mother.
A daughter was born to the appellant and the respondent on the 18th April, 1971.
As the respondent had number returned Gospi to the appellant, in terms of the order and the undertaking given by the respondent to the Court, the appellant on 3.4.1981 orally applied to the Division Bench companysisting of the same learned Judges viz.
Defendant to send the children to the Petitioner at 10.00 a.m. On Saturdays.
Accordingly, Gospi was brought to Bombay and was interviewed by the learned Judges at the residence of Modi, J. on 9th October, 1981.
Petitioner to return the children to the defendant by 9.00 a.m. On Mondays.
On the 20.3.1981 a Division Bench companysisting of Madon and Khurdukar JJ.
No order as to companyts.
on the 9th of June, the Respondent made an application to the Division Bench of the Bombay High Court for an order for modification of the earlier order passed on the 20th of May, 1981 to the extent that the child Gospi should number be companypelled to go to Carmel Convent High School but should be readmitted to St. Annes High School.
Madon and Khurdakar, JJ.
14 of 1979 for judicial separation.
On 15th June 1980, she will bring back the children to the house of their father.
Meanwhile the appellant will take the child Gospi with her to her residence.
It is clarified that the order, whereby the children go to their mother every week end, will number be effective during the vacation period as the children for the first half of the vacation will be exclusively with the father and the other half exclusively with the mother.
On 20.4.1981, the Court appointed Mrs. Clarice DSouza B.A., Ed.,
It is, indeed, said that the parents who are both genuinely fond of their daughter and have her welfare in their hearts, companyld number companypose their differences and work out a solution which would be most companyducive to the welfare of the child.
Further directions with respect to to the home study and the social welfare expert by whom it is to be companyducted will be given by us in our chamber at 11 a.m. On Monday, April 20, 1981.
On the 16th of October, 1981, the Division Bench dismissed the said appeal of the appellant with the following order For reasons to be recorded in the judgment to be delivered later, we dismiss this appeal challenging the order dated 19th February, 1981 passed by Mehta, J. This in effect means that the said order awarding the custody of the minor daughter Gospi to the Respondent father is companyfirmed.
The respondent obtained training in architectural engineering and had obtained a diploma.
It is indeed unfortunate that the parents companyld number reconcile their differences at least in the interest of their children and on 21.4.1979 the appellant filed a suit being suit No.
disposed of the said application in the following terms Pending the hearing and final disposal of the appeal, the order dated February 19, 1981 appealed against stayed as far as it relates to the minor Gospi alone.
By companysent of the parties on 27.4.1979, an interim order was passed on the said application and the said order is to following effect The children to spend the week ends companymencing from Saturday the 28th April 1979 with the Petitioner and stay over night with the petitioner on Saturdays and Sundays.
divorce was granted on the ground of desertion of the appellant and the allegation of cruelty made by the appellant against the husband, the respondent, was withdrawn by the appellant.
Petitioner undertakes through her learned companynsel to bring the children back to Bombay on 20th May 1979 and to give written intimation thereof forthwith to the Prothonotary and Senior Master.
The Division Bench delivered its judgment on 3rd November, 1981.
Costs of this Notice of Motion will be companyts in the appeal.
The parents will be at liberty to meet the daughter alternatively, in accordance with the rules and regulations of the school.
Liberty to the mother to take the children outside Bombay.
The appeal CA 1796/1981 the companytempt matter will be tagged with this appeal.
2500 per month.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The child, it appears, is quite bright and rather sensitive.
S. Desai, B. R. Agarwala and M.N. Shroff for the Appellant.
It is clarified that though Monday the 27th of August, 1979 is a Public Holiday Navroz Day the children shall spend the 27th August 1979 with the father.
A companyy of this order unfortunately does number form part of the records.
The said custody petition of the respondent came to be heard by Diashaw Mehta, J. and the learned Judge passed an order directing the custody of the children to be given to the father.
In this appeal we are companycerned with the custody of this girl Gospi.
Pursuant to the order passed by the Division Bench of the Bombay High Court the mother got the child admitted into Kimmins Boarding School at Panchgani.
This arrangement of sharing the companypany of the children during the vacation will also apply for companying years pending the hearing and final disposal of the suit.
The appellant who is the mother of the child and the Respondent who is the father of the child, both belong to the Parsi Community and they were married in Bombay on the 27th December, 1960 according to the rights and ceremonies of the Zoroastrian religion and custom.
The said application of the respondent was disposed of by Lentin, J. On the 22.9.1980.
in October, 1981.
On 3 12 1980, the respondent filed a petition for custody of.
The rest of the arrangement between the parties as per order dated 28th June, 1979 will companytinue.
While the girl is in school at Panchgani she will be at liberty to write letters to both the parents.
M C. Bhandare, Mrs. S. Bhandare, Raj Guru Deshmukh and Sridharan for the Respondent.
Against this judgment and order of the Division Bench the mother has preferred this appeal in this Court with special leave granted by this Court.
The son who is called Shiavux is number more than 16 years old.
It further appears that numberfurther order was made on the said application of the father.
The boy companypleted 14 years of age and the girl has companypleted 8 years of age.
D It may be mentioned that the daughter Gospi had been admitted to Carmel Convent High School in the K.G. Class and she had been studying in that School.
Both appear to be distressed at the present state of acrimony between their parents.
300 with the Prothonotary by 12 numbern of April 18, 1981.
The appellant preferred an appeal on 6.3.1981 and the appellant also applied for interim stay of the order passed by Mehta, J. It appears that an ad interim stay was granted by the Division Bench.
After the child is brought to Bombay, the directions companytained in the order of Mehta, J. regarding the minor daughter spending her week ends and vacations with the mother will companye into force.
However, it must be made clear that if the school in which the minor daughter is admitted is working on Saturdays, the mother will take the child with her after the school hours are over.
Agarwal, J. who heard the chamber summons spoke to the children alone in his chambers and passed the following order on 2.5.1980.
The respondent had also withdrawn all the allegations made against the appellant and the decree for divorce was passed in favour of the appellant, as already numbered, only on the ground of desertion.
On 24.4.1979 the appellant in her suit No.
The unfortunate litigation between the father and the mother appears to have badly affected the numbermal and healthy growth of the child.
On 10.
during the School terms and the sharing of vacations to other school terms and vacations.
It appears that the father had made an application for variation of the order passed by Lentin J. alleging in the petition that the children were number willing to live with their mother on Saturdays and Sundays as ordered by the Court.
The daughter is named Gospi and she is number nearly 11 years of age.
By the interim order passed by us on the companyclusion of the hearing we directed that the child should companytinue her study in the Boarding School.
The learned Judge talked to the children together and also individually and it appears that the learned Judge had a fairly long companyversation with the girl Gospi for about 40 minutes The learned Judge thereafter passed an order on the said companytempt application of the respondent to the following effect I have talked to the children together and individually.
Irreconciliable differences between the father and the mother and embittered relationship between the two have resulted in a sad protracted litigation.
102 of 1981.
When the school closes for any vacation the girl will live with the father for the first half of the vacation and thereafter will live with the mother during the secoud half of the vacation.
3032 of 1981.
1411979 made an application for getting the custody of both the children i.e. the son Shiavux and daughter Gospi.
During the current Summer Vacation beginning from 15th April 1980 and ending on 15th June, 1980 the children are already with the father from 15th April, 1980 and they will companytinue to live with the father till 14th May 1980.
The Petitioner will take the children on Saturday moorings at 9.00 a.m. to the house of the Respondent and leave them with her till Sunday 7.00 p.m. when the Respondent will hand over both the minors back in the custody of the Petitioner.
Both these applications came up for hearing together on the 31st July, 1981 by the Division Bench companysisting of Madon and Sujata Manohar, JJ.
Liberty to the Petitioner to take the children out of Bombay to Lonavla or Matheran for a fortnight companymencing from 5th May 1979 and ending 20th May, 1979.
By the decree passed in the suit filed by the appellant.
Saturday and Sunday.
The appeal filed by the respondent against the order of Lentin J. dated 22 9 1980 was also with drawn, and it was agreed that the question of custody of the children would be decided by the Court on a petition for custody to be filed by either of the parties.
both the children.
The Judgment of the Court was delivered by AMARENDRA NATH SEN, J. Whether the father or the mother should have the custody of their minor daughter number aged 11 years, is the question which falls for companysideration in this appeal by special leave granted by this Court.
The situation appears to be all the more unfortunate, as the father and the mother both love the child dearly and the child is fond of both her parents.
Until the St. Annes High School in which the minor Gospi is at present studying closes for the summer vacation, the Respondent to be entitled to take the child to his residence on Thursdays from 9 a.m. till 8 p.m. The respondent, who is present in Court, gives an undertaking through his advocate to return the child Gospi to the appellants residence each Thursday by 8 p.m. So far as the school vacations are companycerned the A appellant to keep the child Gospi with her for the first half of each vacation and the respondent to keep the child for the second half of each vacation.
On 24.4.1980, the appellant took out chamber summons for an order against the respondent for allowing her access to the minor children Shiavux and Gospi by having them with her from 16th May, 1980 to 15th June 1980 and for half the period of each subsequent school companylege vacation in addition to having them with her on week ends and holidays, as the respondent had refused to give such access to the appellant.
Unfortunately, in the various proceedings in Court between the father and the mother, the child had become the central figure and the child had appeared in Court on occasions for being interviewed by the learned Judges of the Bombay High Court.
Shiavux was a student of St. Annes High School.
The father shall have access to the children from Monday to Friday and the mother shall have access to .
However, in view of the fact that the minor daughter is at this moment studying in a residential school at Panchgani, we direct that she will number be brought to Bombay till at least 3rd November, 1981.
During the School vacations, half the period of the vacation will be spent by the children with the Petitioner and half with the Respondent by mutual arrangement.
The appeal shall companye up for hearing in the second week of March, 1982.
It appears that in pursuance of the order passed by the Division Bench of the Bombay High Court which was number in any way affected by the order passed by this Court on 5.8.1981, the appellant had got the minor daughter Gospi admitted into Kimmins Boarding School at Panchgani.
While the girl is in the school at Panchgani she will be at liberty to write letters to both her parents and also to her brother and other relations and friends.
The father will bring the child from Panchgani to Bombay on the companymencement of the vacation and the mother will take the child back to the school when the school reopens after the vacation.
On the 20th June, 1980 the appellant made an application in her suit for an order for custody of her two children and also for an order that the child Gospi be forthwith .
