Dismissed

Lt Col Iqbal Bahadur Tegh Bahdur Dutt(Retd) v. Dr Dentist Mrs Ann S Dutt

Gujarat HC30 Jul 2021MCA/445/2019

Case brief

AI extract

What is this about?

The High Court disposed of an appeal by grandparents seeking enhanced visitation rights and custody of a 9-year-old girl child amidst pending divorce proceedings. The Court held that compelling the child to meet them would harm her mental well-being due to her refusal and family discord.

What did the court decide?

No visitation rights or custody granted; communication via phone/email allowed pending the child attaining majority.

Lt Col Iqbal Bahadur Tegh Bahdur Dutt(Retd)… — Child Custody and Guardianship | Gujarat HC (2021)

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 694 of 2019

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With MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2019

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In R/FIRST APPEAL NO. 694 of 2019

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With R/CROSS OBJECTION NO. 20 of 2019

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In FIRST APPEAL NO. 694 of 2019 With R/MISC. CIVIL APPLICATION NO. 528 of 2019

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In FIRST APPEAL NO. 694 of 2019

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With CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2020 In R/MISC. CIVIL APPLICATION NO. 528 of 2019

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In FIRST APPEAL NO. 694 of 2019 CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 OF 2020

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IN R/MISC. CIVIL APPLICATION NO. 528 OF 2019 With R/MISC. CIVIL APPLICATION NO. 445 of 2019

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE DR. JUSTICE VINEET KOTHARI

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and

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HONOURABLE MR. JUSTICE B.N. KARIA

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== 1	====================================================== Whether Reporters of Local Papers may be allowed to see the judgment ?	========== YES
2	To be referred to the Reporter or not ?	YES
3	Whether their Lordships wish to see the fair copy of the judgment ?	YES
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	YES

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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==================================================================

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LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD)

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MRS SANDHYA IQBAL BAHADUR DUTT Versus DR DENTIST MRS ANN S DUTT

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========================================================

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Appearance:

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LT COL IQBAL BAHADUR TEGH BAHDUR DUTT -PARTY IN PERSON(5000) for the Appellants MR MAKBUL I MANSURI(2694) for the Respondent MR SHAILESH M AHIR(9999) for the Respondent

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================================================================= CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI

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and

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HONOURABLE MR. JUSTICE B.N. KARIA

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Date : 30/07/2021

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CAV JUDGMENT

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(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

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The present dispute before us in the form of First Appeal, connected Cross-Objections and Contempt Petition, revolves around the Visitation Rights sought by grandparents – Lieutenant Colonel Iqbal Bahadur Tegh Bahadur Dutt (Retd.) (Aged 72 years) and his wife – Sandhya Iqbal Bahadur Dutt (Aged 64 years) in respect of girl child ‘ Dhairya ’, aged about 9 years now, born on 12.4.2012 out of the wedlock of their son – Saurabh Iqbal Bahadur Tegh Bahadur Dutt, Major in the Indian Army and Respondent – Dr. (Dentist) Mrs.Ann S. Dutt (Aged about 37 years), aggrieved by the order dated 31.1.2019 passed by the Judge, Family Court No.4, Ahmedabad (Mrs. Minal Nihal Gadkari), who, on Civil Misc. Application No. 101 of 2016 , passed the following final

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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order on 31.1.2019 :

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“1. The present application is partly allowed.

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2. It is hereby order that the applicant’s grandparents of minor ‘Dhairya’ shall have right of visitation to meet and to see her on every first Saturday of every month at the Mediation Center, during 2.00 p.m. to 4.00 p.m.till 1 years from the date of this order and thereafter, they shall permitted to take her with them for outing on aforesaid day and period.

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3. It is also directed to opponent that during the visitation hour she shall handover the custody of minor child to applicants in Mediation Center and facilitate them to meet minor child in her absence.

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4. Both the parties would take proper care and would maintain interest of the minor during visitation period.

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5. Necessary yadi to sent the Mediation Center of Family Court, Ahmedabad.

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Pronounced in the open Court on 31^st day of January, 2019.

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Sd/-

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(Mrs.Minal Nihal Gadkari) Judge Family Court No.4, Ahmedabad (Code No.GJ00425)”

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The matrimonial dispute between Major Saurabh and his wife

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Dr.Ann S. Dutt, whose marriage took place on 3.12.2009 , arose in the year 2013 and the Respondent – wife started living separately with her own parents since January, 2013 . The dispute between the two sides aggravated so much that even though they are living only 800 mtrs. apart

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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in the same Satellite area of Ahmedabad as per the address given and the fact as noted by the Family Court that the grandparents claimed custody of the child ‘ Dhairya ’ and inter-alia raised a ground that 88 years old great grandmother, the mother of Mrs.Sandhya Iqbal Bahadur Dutt were longing to see the child and they being senior citizens, grandparents being fully qualified, educated and well-off financially were in a position to take good care of the child born to their son and his estranged wife, the Respondent herein.

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The visitation rights were accordingly allowed by the Family Court in the aforesaid manner, as quoted above. The present First Appeal was filed by the two grandparents as the son Major Saurabh was living at outside stations depending upon his postings in the Army at different places and initially, a Coordinate Bench of this Court passed a detailed order on 6.5.2019 while admitting the present First Appeal. The said order is also quoted below for ready reference :

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“In light of the earlier order, more particularly in view of the submission by the mother of the child that she would not be available till 12.5.2019 and having regard to the fact that before 12.5.2019, the Court would close for Summer Vacation, we considered it appropriate (since though the appeal is listed in today's cause list the cross objection are not listed/placed alongwith the appeal) to direct the registry to list the Cross

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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Objection and place the papers before us today. Accordingly, the office has, in response to the direction, listed and placed the Cross Objection.

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2. Against the order dated 31.1.2019 passed by learned Family Court in Civil Misc. Application No. 101 of 2016 , the original applicant as well as original opponent have taken out captioned proceedings in First Appeal No. 694 of 2019 and cross objection No. 20 of 2019 . The original applicant has filed captioned First Appeal No.694 of 2019 whereas the original opponent has filed captioned Cross Objection No. 20 of 2019 .

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2.1 The appellants in First Appeal No. 694 of 2019 i.e. original applicants in Civil Misc. Application No. 101 of 2016 before learned Family Court are grand-parents of 7 years old child who , now, will commence her study in 3rd standard.

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2.2 The opponent in the First Appeal is the mother of the child.

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2.3 So far as parents (father and mother of the child) are concerned, they are prosecuting divorce petition .

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The father of the child is serving in Indian Army. Presently, he is posted outside Gujarat State. The mother has separated and she stays with her parents and not at the matrimonial house.

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2.4 In this background, the grand-parents filed above mentioned Civil Misc. Application No. 101 of 2016 and prayed for visitation right with the child.

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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The title/subject matter of the said Civil Misc. Application No. 101 of 2016 (as described by present appellants) reads thus:-

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“APPLICATION FOR GRANT OF CUSTODY UNDER THE GUARDIANS AND WARDS ACT, 1890, Sec 8, 10 & 17 AND THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956 AND OTHER APPLICABLE PROVISIONS OF LAW for visitation rights”

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2.5 In the said application, present appellants prayed, inter alia, that:-

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“4(A) granted access and visitation rights to an hour or two every day at petitioner's place of residence minor Dhairya Saurabh Dutt for.

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B) Grant overnight stay at petitioner's place on weekends.

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C) Hear and adjudicate the separate application for interim measures which is filed with the petition.

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D) direct the respondent to pay the cost of this Petition.

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2.6 After hearing the parties, the Court passed order dated 31.1.2019. The operative part of the final order reads thus:-

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“FINAL ORDER

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1. The present application is partly allowed.

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2. It is hereby order that the applicant's grandparents of minor “Dhairya” shall have right of visitation to meet and to see her on every first Saturday of every month at the Mediation Center of the Family Court, Ahmedabad, during 02.00 p.m. to 04.00 p.m. till 1 years from the date of this order and thereafter, they shall permitted to take her with them for outing on aforesaid day and period.

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3. It is also directed to opponent that during the visitation hour she shall handover the custody of minor child

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021

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LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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to applicants in Mediation Centre and facilitate them to meet minor child in her absence.

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4. Both the parties would take proper care and would maintain interest of the minor during visitation period.

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5. Necessary yadi to sent the Mediation Center of Family Court, Ahmedabad.

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Pronounced in the open Court on 31st day of January, 2019.”

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3. The appellants seek that the time for visitation granted by learned Family Court may be enhanced and even number of days may also be enhanced. The appellants (grand-parents) have prayed, inter alia, that:-

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“20B] Enhance the visitation granted by the Family Court in its final judgment dated 31.01.2019 and grant visitation as prayed as under:

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i. grant access and visitation rights to the minor granddaughter Dhairya Saurabh Dutt for 1 to 2 hours every day and overnight stay on Saturdays and Sundays at their place of residence.

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ii. grant visitation to make Dhairya participate in celebrating festivities like Deepawali, Dusehra, Baisakhi, Holi, etc., our birthdays/marriage anniversary / her birth day etc., at the place of residence of petitionergrandparents.

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iii. Grant access to their granddaughter on telephone/computer (Skype etc.) as and when required .

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C] direct the respondent to respect and honour the judiciary and not cancel the visitation unilaterally or create any hurdles in implementation of the Court order in its letter and spirit.”

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4. The mother of the child has filed Cross Objection. She has

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021

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LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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challenged the decision dated 31.1.2019 and prayed that the relief granted by the learned Family Court may be set aside. She has set out the grounds in justification for the request made in the Cross Objection.

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5. In past certain proceedings with regard to similar relief have ensued. The details are mentioned in the memo of the Appeal as well as Cross Objection. At this stage, it is not necessary to advert to the said details.

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6. With regard to compliance of the order/s granting visitation rights several allegations and counter allegations are made by both sides.

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7. We tried to take opportunity of interacting with the child . However, in light of the reply by the mother of the child, i t could not materialized . Thus, at this stage, we do not have benefit of interaction with the child and to know her reaction to this entire situation .

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8. Having regard to the facts and circumstances which appear from the pleadings and from the order as well as from the fact that the said final order is challenged by both sides and also having regard to the fact that, (a) the divorce petition (filed by the father of the child) is pending ; (b) in the said divorce proceedings, the husband has, by means of separate application, prayed (for himself) visitation hours/days with the child ; (c) with regard to the interim order which was passed by learned Family Court during the pendency of Civil Misc. Application No. 101 of 2016 , certain

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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execution application filed by the grand-parents (i.e. the appellants) is also pending ; and (d) the fact that the appellants have raised grievance about the place fixed by trial Court for visiting the child on the ground of distance and infrastructure / place, we pass following order:-

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[a] The Appeal and the Cross Objections are ADMITTED .

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[b] So far as issue with regard to interim relief is concerned, in light of the facts and circumstances of the case, we are of the view that during pendency of the Appeal and Cross Objections, there is no need or justification to modify/enhance the visitation hours . Therefore, so far as direction contained in para No.4 of final order is concerned, we do not make any alteration/modification at this stage.

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We, however, clarify that this order can be reviewed at later stage during pendency of the Appeal , if such circumstances are made out by either side in appropriate application.

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[c] So far as place for visiting the child by grand-parents is concerned, in para No.3 of the order it is stated that grand parents can meet the child at Mediation Centre of learned Family Court during the time and on the date mentioned in para No.2 of the order. As mentioned above, the appellants have made grievance with regard to place.

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We find the said grievance justified. Therefore, we consider it

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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appropriate to change the place of visit by grandparents with the child from Mediation Centre, Family Court to Mediation Centre, Gujarat High Court .

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Other directions shall remain the same.

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After a gap of about 2 years, when the matter was again listed before this Court after adjournments on several occasions, in the meanwhile the matter was referred also to the Mediation Center for exploring the possibility of settlement by a Coordinate Bench on 13.9.2019 . But that effort failed and the matter again was listed before us on 26.3.2021 , when again the following order was passed for exploring such possibility of an amicable settlement of the dispute regarding custody of the minor child ‘ Dhairya ’ :

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“1. After having conversation with the parties namely , Lt. Col. Iqbal Bahadur Dutt (Retired), Lt. Col. Saurabh Dutt (Husband), Dr. Ann S. Michael (Wife), Ms. Dhairya (Daughter aged 9 years) and Mr. Makbul I. Mansuri & Mr. Shailesh Ahir, learned Counsels appearing for the Wife, we consider it appropriate and expedient to pass the following interim Order in supersession of the earlier Orders passed for the Visitation Rights in the present Matrimonial Dispute case.

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2. Dr. Ann S. Michael, mother of child Dhairya who has the

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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present custody of the said child has agreed to take the girl child in the supervision of Mr. Shailesh Ahir, learned Advocate (Mobile Number 98985 43386) to the residence of Lt. Col. Iqbal Bahadur Dutt (Father-in-Law) on 12.4.2021 (Birthday of Dhairya) in the evening hours around 5.00 pm and Lt. Col. Saurabh Dutt (Husband) has also agreed to come over from his place of posting at Bareli to Ahmedabad to meet his daughter Dhairya on her Birthday i.e. on 12th April, 2021 in the evening hours and, therefore, the said meeting of Lt. Col. Saurabh Dutt & other grandparents as well as great grandmother with the Dr. Ann S. Michael (Wife) and Daughter Dhairya in the supervision of Mr. Shailesh Ahir, learned Advocate will take place at the residential premises of Lt. Col. Iqbal Bahadur Dutt at the address which will be supplied or communicated to Mr. Shailesh Ahir and Dr. Ann S. Michael also well in advance.

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3. The said meeting should take place in congenial friendly atmosphere at least for approximately 2-3 hours .

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4. We further consider it expedient and therefore direct to allow one more such meeting on the next date i.e. on 13.4.2021 also, which is a Public Holiday on account of Chetichand at Ellisbridge Gymkhana, Ahmedabad as suggested by the parties between 11.00 am and 2.00 pm in the same manner.

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5. We direct and request the parties to maintain decorum, peace and a congenial atmosphere for the said meeting of the child Dhairya with all family members on parental side, father, grandparents and great-grandmother and the parties must

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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avoid any acrimonious exchanges of words or gestures . This is considered necessary for the soothing psychological impact on the child and to avoid any untoward behaviour on the part of any of the parties.

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6. Mr. Shailesh Ahir, learned Advocate / Witness of these meetings will submit a separate Report to this Court after both the meetings are over on 12.4.2021 and 13.4.2021.

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7. After the said meetings take place and a Report from the learned Advocate Mr. Shailesh Ahir is received by this Court, further appropriate Orders will be passed in the matter on the next date of hearing, which is fixed on 19.4.2021 @ 2.30 pm and the parties may again join the meeting through Video Conferencing, alongwith their Counsels.

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Though a meeting took place at the residential place of the Respondent – Dr. Ann S. Dutt on 12.4.2021 but that meeting miserably failed as the child did not respond at all and was not willing to meet the grandfather - Lieutenant Colonel Iqbal Bahadur Tegh Bahadur Dutt and her own father Major Saurabh, who visited the residential house of Respondent – Dr. Ann S. Dutt. The said meeting on the birthday of the child ‘ Dhairya ’ having failed, the Court again held a video meeting with the family members on 22.6.2021 and the Court, after hearing the

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021

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LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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concerned parties and their concerned Advocates, passed the following

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orders :

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“In pursuance of the last order, we had a virtual meeting with the parties namely, Lt. Col. Iqbal Bahadur Dutt (Retired), Dr. Ann S. Michael (Wife), Ms. Dhairya (Daughter, Aged 9 years) and Mr. Makbul I. Mansuri & Mr. Shailesh Ahir, learned Counsel appearing for the Wife. The child (Dhairya) has expressed her view very firmly and with little anger also that she is not interested in meeting any member of the family of her parental side, father, grandfather or grandmother or even mother of the grandfather who is in advanced age . The Court was making some efforts for last few hearings to allow such meeting of the child with the father and grandparents. One such meeting at the residence of the mother Dr. Ann S. Michael (in place of a third place which was originally scheduled to be held viz. Ellis Bridge Gymkhana, Ahmedabad) took place briefly, but no fruitful conversation took place , as the child Dhairya was not mentally ready to talk to her father and grandfather.

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In view of that unfruitful visit of the father and grandfather at the place of mother Dr. Ann S. Michael and today’s conversation with the child by both of us on the virtual platform , we are of the opinion that any such further effort of arranging any meeting of the child with the paternal side members of the family may not be in the interest particularly her mental state and psychology of the child at present . Therefore, we are left with no option but now to hear the present Appeal in custody matter on its own merits . The Appellant grandfather – Lt. Col. Iqbal Bahadur Dutt (Retired) is

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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appearing as Party-in-Person, whereas Respondent – Dr. Ann S. Michael (Mother) has engaged Mr. Makbul I. Mansuri as her Advocate to appear in the matter. The Appeal may be listed for Final Hearing on 20.07.2021 at 2.30 p.m.

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In view of the possibility of the amicable settlement for visitation having failed, the Court heard the matter on its own merits at length on 20.7.2021 .

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The Appellant - Lieutenant Colonel Iqbal Bahadur Tegh Bahadr Dutt argued the case personally as Party-in-Person, while the Respondent – Dr.Ann S. Dutt was represented by the learned counsels Mr. Makbul I. Mansuri and Mr.Shailesh M. Ahir.

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The Appellant vehemently submitted before us that the girl child ‘ Dhairya ’, aged 9-10 years now, is not being given proper care, while she is in the custody of her mother – Respondent (Dr.Ann S. Dutt), a Dentist Doctor who has her own profession to look-after and, therefore, being busy, she cannot give full time and attention to the minor child ‘ Dhairya ’, whose father and their son Major Saurabh, a decorated Army Official is mostly out of Ahmedabad and, therefore, the Appellants consider it their duty and moral obligation to bring up the child as per the

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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family traditions in a decent manner, but the Respondent has poisoned her mind so much that despite all efforts made by the Appellants - parents and father of the child, Major Saurabh and even this Court to strike a cordial note with her despite the matrimonial dispute (Divorce case) with Respondent – Dr.Ann S. Dutt being pending, the child has not responded to them properly or at all in a positive manner. He urged that both the grandparents are highly qualified people and the Appellant No.2 – Mrs.Sandhya Iqbal Bahadur Dutt is herself a Teacher in a primary school. Therefore, the up-bringing of the child can definitely be carried out in a much better manner in their hands and financially they are well-off enough to take care of her interest. Therefore, the Respondent – Dr.Ann S. Dutt should be directed to allow full visitation rights to the grandparents and the child may be kept in the custody of the grandparents by allowing the present First Appeal. The Appellants vehemently contended that the Respondent – Dr.Ann S. Dutt is constantly violating the Court’s orders and not allowing such visitation rights and is deliberately preventing the execution of the visitation rights given to them by the Family Court and also under the interim orders of this Court and, therefore, she should be punished under the Contempt Law.

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Per contra , Mr.Makbul I. Mansuri, learned counsel appearing for the Respondent – mother (Dr.Ann S. Dutt) vehemently denied all the

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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allegations and arguments of the Appellants and submitted that the Respondent – Dr.Ann S. Dutt is also a highly qualified person being a Dentist and besides her profession, she is taking very good care of the child ‘ Dhairya ’, who is mentally and emotionally fully attached with her mother and there is no lack of care on her part nor there is any question of ‘poisoning’ her mind or filling her mind with prejudices against her grandparents or her father. But if the child consistently refuses to meet them and even cries if insisted upon, she cannot help and she cannot push the child beyond a limit, who is now about 9-10 years of age and fully understands the situation of the matrimonial discord between her parents and in view of the matrimonial dispute and acrimony between the two families, she cannot be held to be guilty of any deliberate disobedience of directions of the Family Court or this Court and whenever the Court has asked her to allow the Appellants to meet the child, she has arranged such meeting and has taken the child to the directed place and on 12.4.2021 , even at her own house, she was available to allow such meeting of the grandfather and the father Major Saurabh Dutt at her own residence and even offered cup of tea and snacks to them but if the child ‘Dhairya’ refused to go to them and receive their affection or blessings given on her birth-day on 12^th April, , it was for the grandparents and the father to persuade her to come to them. But they failed to do so and in a rush, left the place after few minutes observing that there is no point in “wasting

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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the time”. He submitted such a rude attitude even caused a psychological

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negative impact on the child during the said the last meeting and, therefore, the Court should pass appropriate directions in the best interest of welfare of the child. He urged that in the absence of any deliberate disobedience on the part of Respondent to comply with the directions of this Court regarding visitation, no contempt is made out. On the other hand, her Cross-Objections deserve to be allowed.

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We have heard the parties at length and perused the record. We ourselves held 2 or 3 video meetings in this matter including the meeting with the girl child ‘ Dhairya ’ herself with her mother from their residence and Appellant – grandfather (and also father Major Saurabh Dutt on one occasion.)

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We are of the considered opinion that the welfare of the child is an overriding consideration for the Court in such matters of visitation rights. The tender age and psychology of the child cannot be allowed to be prejudiced or negatively impacted by the cross-fires of allegations and counter allegations. The matrimonial disputes between the adults is a complex social problem and the most prejudicially affected persons are the children born out of such wedlock which broke or developed cracks in it. The loving parents are the best friends of the children born out of the

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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wedlock and if the parents constantly fight, the children always fail to understand the real cause of the same but are mentally torn by such verbal and physical fights in front of their eyes. No mathematical measurement of such negative impact can be jotted down for assessment but it is certain that children of tender age in such situations carry a permanent scar on their mind and that is most unfortunate fruit of such fights which even educated and qualified adults fail to perceive fully and bury their disputes for the benefit of minor children in their young tender age.

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In the present case, this Court itself faced the dilemma. On the one hand, the grandparents whose natural love and affection for the grandchild cannot be found to be sullied by any ulterior motive or negative feeling for the child, howsoever harsh the fight between their own son and daughter-in-law could be and, therefore, their blessings, love and affection for the grandchild should always be considered to be pure and natural.

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On the other hand, the mother of the child, one of the parties to the matrimonial dispute with her husband, is also torn between the two. For her own reasons, she might be in a disarray of relationship with her husband which we are not required to go into in detail in the present Appeal pertaining to visitation rights of the grandparents only and on the

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other hand, her emotional bondage and duty to take care of her own girl child ‘ Dhairya ’ cannot be over emphasized. There is nothing on record either in documentary form or otherwise which could establish in any manner that the Respondent – mother – Dr.Ann S. Dutt is unable to take good care of the child ‘Dhairya’ aged 9-10 years.

¶156

After making our best efforts for amicable settlement with 2 or 3 video meetings and even directing the physical meeting between the grandparents, father and child, which took place at the residence of the Respondent – mother, the result of that was found to be without any positive development and, therefore, in our last order dated 22.6.2021 , we had to stop the visitation rights of the grandparents and father in the best interest of the girl child ‘Dhairya’.

¶157

The aforesaid dilemma continues even now.

¶158

We are, therefore, of the considered opinion that such matters are not resolved by any kind of directions and compulsory meetings by giving visitation rights to the parents or grandparents even appreciating their earnest and natural desire to shower their love and affection, care and blessings to the grandchild nor we can force the Respondent – mother

¶159

Dr.Ann S. Dutt by a mandamus to make her child meet the

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grandparents on the given dates or on a specified periods contrary to her own desire. The child herself being a minor but her tender age of 9 years only, she cannot be subjected to any mandamus directions of this Court. Such problems are best resolved by the own volition of the parties concerned or the family members and above all, the child herself. Since the child ‘ Dhairya ’ presently is only 9 years, in our considered opinion, we feel that no mandamus direction can be given to the Respondent – mother – Dr.Ann S. Dutt or the child ‘ Dhairya ’ at this stage, per force of the Court’s order, to meet the grandparents or father Major Saurabh Dutt.

¶163

We also do not find any ground to take cognizance or punish the Respondent – mother – Dr.Ann S. Dutt under Contempt Law as argued by Appellants.

¶164

We express our respect for the feelings and stature of the grandfather and the father as they both are Army Personnel, the grandfather a retired Lieutenant Colonel and father a serving Major and we definitely hope and expect that they belong to a very disciplined and educated background and the grandmother is also a Teacher in the school. Therefore, possibly no harm can be caused to the child if the child visits them or is given in a temporary custody of the grandparents. But, we are

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LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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afraid, we cannot do that by a mandamus as no force in such matters would yield good results for the child herself, there being no dispute for both the sides themselves that they want the best interest of the child to be protected and safeguarded.

¶169

Therefore, we are unable to grant any visitation rights to the Appellants at this stage, at least till the girl child ‘ Dhairya ’ attains majority, which as per her birth-date 12.4.2012 she will be achieving on 12.4.2030 . After her achieving the adult age, she would be free to decide on her own whether to meet her father and grandparents. For the interim period till her adulthood, we leave it free for the Appellants – grandparents and father to make their friendly efforts through convenient time phone calls or emails, for seeking the cooperation of the Respondent – mother – Mrs.Ann S. Dutt and if the girl child ‘ Dhairya ’ gives her willing consent to meet the grandparents or the great grandmother even for a few minutes, we would express our desire and hope that the Respondent – mother – Dr.Ann S. Dutt will cooperate and take suitable steps for meeting of ‘ Dhairya ’ with the grandparents and great grandmother on a few occasions, say on Festivals. Since the Respondent – mother is a qualified person being a Dentist Doctor, we hope and expect that keeping aside her matrimonial dispute with her husband Major Saurabh Dutt, she will also appreciate the natural desire of the

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LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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grandparents to meet their granddaughter ‘ Dhairya ’. But as indicated above, no force or mandamus direction of the Court can be given for the same.

¶174

In somewhat similar circumstances, we have taken a similar view as aforesaid in another case in First Appeal No. 3019 of 2018 ( Suryakant S/o Banjrang Lal Goel v. Richa D/o Shambhulal Agrawal ) decided on 9.7.2021 , in which the biological father living in Canada wanted to have continued visitation / talking rights with his daughter, aged 13 years, who was living with her mother, who re-married with another person and was living in Ambaji, Gujarat and after obtaining a Report from a Child Psychologist, we considered it appropriate to suspend those visitation / talking rights given to the biological father living in Canada till the minor girl child “Rashi’ achieved her adulthood . Relevant Para.4 to 7 of that judgment rendered recently by us are also quoted below for ready reference :

¶175

“4. We also requested Ms.Richa, now married to Mr.Lakshman Agrawal and Ms.Rashi to join this meeting as we could not readily get into contact with Appellant Mr.Suryakant Goel as he lives in Canada through video meeting today and briefly interacted with them. After discussion with learned counsel also and aforesaid interaction with Ms.Richa and Ms.Rashi and both

¶176

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learned counsel appearing on behalf of the parties all of them fairly agreed with the proposed order which we indicated to all the parties and learned counsel in the video meeting. This meeting, the other counsels appearing in other cases in our Board were kept in the Waiting Hall.

¶179

5. Upon perusal of the Report of Dr. Khushnuma Banaji , Clinical Psychologist , interaction in the Court with Ms.Richa and Ms.Rashi and both the learned counsels, we are of the considered opinion that for the present, the visitation / talking rights given to the biological father of the child Ms.Rashi of Mr.Suryakant Goel need not continue, as it may have adverse psychological effect on the child Ms.Rashi who is of tender age now but she appeared to be having clear and sufficient understanding of the life as she told that she is presently in 9th standard only but want to become Scientist and intends to join NASA . The said girl RASHI is now proceedings towards her adulthood and we, advisedly, do not think it proper to disturb her equilibrium or peace of mind as well as the present family of Ms.Richa who is living with her husband Mr.Lakshman Agrawal at Ambaji happily with other two children of Mr.Lakshman Agrawal from his previous wife.

¶180

6. The family overall appears to be in happiness and good financial condition. Therefore, the welfare of child Ms.Rashi can very well be taken care by the present family where she is living.

¶181

7. Accordingly, we dispose of this Appeal itself and connected Civil Applications by removing the part of the order of the Family Court below quoted above (Para F) with regard to the

¶182

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C/FA/694/2019 CAV JUDGMENT DATED: 30/07/2021 LT COL IQBAL BAHADUR TEGH BAHDUR DUTT(RETD) MRS SANDHYA IQBAL BAHADUR DUTT v. DR DENTIST MRS ANN S DUTT

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visitation / talking rights given to the biological father Mr.Suryakant Goel . The said position will continue and we leave it absolutely to the discretion of the child Ms.Rashi who, after becoming the major viz. achieving the age of 18 years , may take her own voluntary decision about having talking terms or connecting in any other manner with the Appellant Mr.Suryakant Goel, Canada and we may make it clear that no force of whatever nature shall be put on the said child Ms.Rashi in any manner for the said purpose.”

¶185

Therefore, leaving the scope for amicable settlement for visitation still open to the parties, we dispose of the present First Appeal, connected Civil Applications, Misc. Civil Applications and Cross-Objections accordingly, with no order as to costs.

¶186

(DR. VINEET KOTHARI,J)

¶187

(B.N. KARIA, J)

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V.J. SATWARA

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Lt Col Iqbal Bahadur Tegh Bahdur Dutt(Retd) v. Dr Dentist Mrs Ann S Dutt

Case brief

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Lt Col Iqbal Bahadur Tegh Bahdur Dutt(Retd) v. Dr Dentist Mrs Ann S Dutt

Case brief

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What did the court decide?

What the court decided

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