(Per : HONOURABLE MR.JUSTICE A.L.DAVE)
1. Minor-Bhagyesh, son of Nirmal Patel, aged about 14 years, has approached this Court through his grandfather Amrutlal Patel, with following prayers:
"24.(a) This Hon'ble Court be pleased to declare that irrespective of any orders passed in the custody matter between the Father and Mother, the Petitioner can not be forced into the customer of either parent and that no coercive action can be taken, forcing the Petitioner to be under the custody of either parent, in strict terms of any order of instruments;
(b) That pending hearing and final disposal of this petition, this Honourable court be pleased to restrain any party, person, etc. from coercing the Petitioner to be in custody of either parent, opposed to his free will;
c) Ex-parte ad-interim relief in terms of para[b]
d) Such other and further relief as this Hon'ble Court may deem just, fit and expedient be passed in favour of the petitioner."
Respondent No.3 is the mother of the minor petitioner and respondent No.4 is the father, who is representated by learned Advocate, Mr. M.B. Gandhi, who is appearing on advance copy of this petition.
2. We have heard learned Sr. Advocate, Mr. Parikh with learned Advocate, Mr. Nirav P. Shah.
Mr.
Parikh submitted that the minor is required to approach this Court to protect his human rights, by virtue of certain order passed by the learned Single Judge of this Court in first appeal, relating to custody of the child. The minor is required to go and stay with the mother, whereas the child does not want to go and stay with his mother. Certain orders have been passed by the Court, permitting intervention of police authorities and / or woman organizations. The child, for whatever reasons, does not want to go and stay with his mother. He is aged about 14 years and has reasonably grown-up to have a wish and express the same. Therefore, he is here with this petition for protection of his rights.
3. Learned Advocate, Mr. Gandhi, submitted that respondent No.4, the father of the child has no objection to hand-over the custody of the minor to his mother, respondent No.3, herein. But, the child does not want to go to his mother and is firm and the father cannot force the child to go to his mother. Respondent No.4 has followed all the directions issued by the Court and has remained unsuccessful. Unfortunately, respondent No.4 is facing contempt proceedings for no fault on his part.
4. It is not in dispute that the first appeal bearing No.3909 of 2010 is pending before the learned Single Judge of this Court, wherein several orders have been passed. The last of such orders require that the mother of the child be permitted to have the custody of the child for a stipulated number of days. But, if the child does not want to go and stay with his mother, implementation of the said order becomes difficult, as shown by this this Court. As per an entry made by the police inspector in Station Diary in Valsad City Police Station, bearing No.25/2011, 20:15 hours, a copy of which is with respondent No.4, which is shown to this Court and its translated version(though, not accurate) is produced on record, which reflects that the minor child was not ready to go with his mother, despite all efforts being made by the father, by the police as well as by the President of Mahila Utkarsh Mandal and the advocate for the mother of the child. Forcing such child to go to his mother would adversely affect his psychic, mental & Physical health and well being.
5. In the opinion of this Court, in such matters, wish of a child, who has reasonably grown-up, and his well-being are of prime importance and of prime consideration. The learned Single Judge of this Court is seized of the custody issue in the first appeal, referred to herein above, and therefore, it would not be appropriate for this Court to exercise jurisdiction under Article-226 of the Constitution of India, when the question of interest and well-being of the child can very well be looked after by the learned Single Judge, after ascertaining the wish and desire of the child. This petition, therefore, cannot be entertained.
6. Learned Advocate, Mr. Parikh, indicated to us that the petitioner could not have approached the learned Single Judge since petitioner is not a party in first appeal. In our view, the petitioner is the child and not the grandfather and child is the most affected person in the first appeal, and therefore, it cannot be said that the learned Single Judge could not have been approached for protection of rights of the minor. We, therefore, refuse to entertain this petition, leaving it open for the petitioner to approach the appropriate forum for asserting and protecting his rights. DISPOSED OF, accordingly.
(A.L.DAVE, J.) (MOHINDER PAL, J.) Umesh/ Top