S.S.SARON, J. - (1.) THE appeal has been filed by the appellant -husband against the judgment and decree dated 05.12.2006 passed by the learned Guardian Judge, Ludhiana, whereby the petition of the appellant for seeking custody of his minor son namely Gaurav has been dismissed.
(2.) THE marriage between the parties was solemnized according to Hindu rites and ceremonies on 23.02.1996. From the marriage, they had a son namely Gaurav, who was born on 08.03.1997. On account of matrimonial disputes between the parties, they separated in July, 2000. The respondent - Anuradha @ Monika filed a petition for divorce against the appellant on 05.04.2001. The learned Additional District Judge, Ludhiana, allowed the petition of the respondent and passed a decree of divorce vide judgment and decree dated 15.02.2002 (wrongly mentioned as 15.05.2002 in the order of the learned trial Court). The appellant also filed an application under Section 26 of the Hindu Marriage Act, 1955, for custody of his minor son namely Gaurav, which was dismissed as withdrawn by the learned Additional District Judge, Panchkula, vide order dated 05.10.2006. It was stated by the learned counsel for the appellant that he is to file a separate petition in the competent Court of Civil Judge (Senior Division), Panchkula. The appellant filed the petition out of which the present appeal arises on 05.12.2006 for seeking custody of his minor son namely Gaurav. The appellant it appears did not press for visitation rights for meeting his son during the pendency of the petition. Learned counsel for the appellant, however, has referred to an application stated to have been filed on 14.12.2012. A perusal of the learned trial Court record shows that an application dated 14.12.2012 with affidavit is on record, but there is no endorsement of the learned trial Judge for taking such an application on record; besides, there is no interim order of the learned trial Court to indicate that such an application had been filed. Even otherwise, had the said application been pressed a reference of the same would have been made in the decision of the petition. Therefore, it appears that an application for visitation rights was filed only as a matter of course but the same was not pressed. In any case, the minor now is above the age of 17 years and he will attain the age of majority on 08.03.2015. He is present in Court and we have interacted with him. Learned counsel for the appellant submits that the appellant may be given visitation rights to meet his son. We have asked the minor son as to whether he is willing to meet his father, he has flatly refused to do so. The Hon'ble Supreme Court in Keshav R. Thakur and another v. Suchhibai (2005) 9 SCC 424, considered the case of custody of a boy living with his grandparents by way of interim orders since his father's death when he was six years old. The boy was aged 16/17 years when the appeal came up before the Hon'ble Supreme Court. It was held that as the boy had remained in the care and control of his grandparents for his entire life, it would not be appropriate to grant custody of the boy to his mother at the said stage. The child was old enough to know his own mind. However, it was observed that the mother could meet her son whenever she approaches her father -in -law. In the present case, however, the minor is not willing to even meet his father.
(3.) IN Gaytri Bajaj v. Jiten Bhalla, 2013 (2) PLR 295, while considering the question of visitation rights, it was observed by the Hon'ble Supreme Court that an attempt was made even by means of a personal interaction with the children to bring the issue with regard to custody and visitation rights to a satisfactory conclusion. From the material on record, it was held to be possible to conclude that the children, one of whom was on the verge of attaining majority, do not want to go with their mother. Both appear to be happy in the company of their father, who also appears to be in a position to look after them, provide them with adequate educational facilities and also to maintain them in a proper and congenial manner. It was observed that the children having expressed their reluctance to go with the mother, even for a short duration of time, the Court was left with no option but to hold that any visitation right to the mother would be adverse to the interest of the children. Besides, in view of the reluctance of the children to even meet their mother, leave alone spending time with her, it was found that their Lordships did not see how such an arrangement, i.e., visitation rights could be made possible by an order of the Court.;