DILESH DINESH BARIYA Vs. PADMAVATIBEN

JUDGEMENT

(1.) This petition is filed under Article 226 and 227 of the Constitution of India challenging the order dtd. 16/3/2021 passed below Exhibit-1 in P.H. No. 1 of 2021, whereby the application filed by the petitioner praying for appointing him as guardian of the two children as also seeking direction against the respondent - wife to meet the children and sought the direction against her father also that he should not object to the same, held to be not maintainable.

(2.) Mr. Manan A. Shah, learned advocate for the petitioner submitted that since the petitioner is suffering from Cancer of tongue, he wants to see that if at all anything untoward happens, his children may have the love and affection of his wife i.e. respondent. Therefore, he has submitted that this petition be entertained and respondent - wife be directed to see the children and nobody should object for the same. However, considering the fact that father being the natural guardian, he need not be declared to be a guardian, and therefore, first prayer made in it was not maintainable. However, as recorded in the order itself that there is a divorce decree passed between the parties in a Family Suit No. 166 of 2014 on 16/4/2019. However, there are appeal proceedings pending against the said order and at the same time, the respondent - wife has never prayed for either the custody of the children or any visitation right. Therefore, learned Court below has recorded that she cannot be compelled to get custody or see her children against her wish.

(3.) Though one of the reasons assigned by the learned trial Court that children have never expressed their will to meet their mother and nothing of the sort found on the record thereof, is against the material on record in the form of affidavit filed by son, which is at page 24 of the compilation. However, it is not the case of the petitioner that such affidavit was ever filed before the Court below. At any rate, such application is found to be not maintainable and I am unable to take any different view than that.