IRFAN AHMED SHAIKH Vs. MUMTAZ

JUDGEMENT

(1.) THIS custody petition is filed by the petitioner/ father for the custody of his minor female child Husna who is about 5 years old. He has also taken out Interim Petition for access of the child and also permission to have over night access. Respondent No. 1 is the ex -wife of the petitioner who is now divorced and has remarried another person by name Abdul Karim Sarfani and also has a child from him aged about 11/2 years. No reply was filed to this Interim Custody Petition by the respondent. When the matter came up for hearing on 14.8.1996, Advocate for the petitioner -husband Miss Irani was present. However, respondent and her Advocate were absent. Since no reply was filed to the Interim Custody Petition, the Court heard the Advocate for the petitioner, perused the proceedings, also perused the previous orders dated 26.7.1995 passed by Mr. Rane, J. and order dated 18.4.1995 passed by Mr. A.P. Shah, J., also perused the photographs tendered by the petitioner's Advocate which showed that the minor child was very much comfortable and happy in the company of the petitioner and allowed the prayer of the petitioner/father to have overnight access of the child Husna.

(2.) SUBSEQUENTLY , Advocate Mr. Sirguroh appeared for the respondent and requested that since this order was passed ex parte without hearing the respondent, the matter be heard again on merits. In fact, the respondent took out Interim Petition praying that the order passed by this Court on 14.8.1996 granting overnight access to the petitioner -husband be set aside and that the petitioner be restrained from taking the minor child at night to his place. The petitioner's advocate did not raise any objection about the matter being again heard on merits. Accordingly, the matter was heard on merits in Chamber. Prior to that the Court interviewed the child Husna in Chamber. The Court also interviewed the petitioner -husband and the respondent No. 1, ex -wife of the petitioner in the presence of their Advocates. The child was sent out of Chamber at that time alongwith her grant mother.

(3.) EARLIER when the Court had a talk with the child Husna it transpired that the child was tutored to some extent but she admitted inspite of this that she liked her father and that she was not scared of him. In fact, she had nothing to say either for or against about the over -night access. The child really of being tender age was quite immature to understand the nature of things. But one thing was certain that she was not against the idea of meeting her father or residing with him at his residence and to have over -night access.