Case Note & Summary
The petitioner husband, Vinod Gulshandev Chopra, challenged the order of the Family Court No.5, Mumbai dated 31st March 2011, which modified the access order of 14th October 2009. The Family Court cancelled the petitioner's access to his two minor daughters (aged 16 and 15) while continuing access to his minor son (aged 9). The parties had a highly acrimonious dispute, with numerous applications filed in the Family Court. The Family Court concluded that the daughters were of an uninfluenciable age and capable of taking their own decision, and since they were reluctant to meet their father, there was no point in continuing the access order. The son, being 9 years old and at an influenciable age, continued to have access. The father challenged the part of the order refusing access to his daughters, contending that under the law, access must be granted until the child attains 18 years. The High Court held that the welfare of the child is paramount, and no hard and fast rule can be laid down. The court must consider the child's wishes, especially when the child is mature. The daughters' reluctance was a valid ground, and the Family Court's order was upheld. The petition was dismissed.
Headnote
A) Family Law - Child Custody and Access - Welfare of Child - Paramount Consideration - Guardian and Wards Act, 1890, Section 17 - The court held that the welfare of the child is the paramount consideration in matters of access, and no hard and fast rule can be laid down except that all children need love and affection. The court must consider the child's wishes, especially when the child is of mature age and capable of forming an independent opinion. In this case, the daughters aged 16 and 15 were reluctant to meet their father, and the Family Court correctly cancelled access as it was not in their welfare. (Paras 7-9) B) Family Law - Child Custody and Access - Right of Access - Not Absolute - Guardian and Wards Act, 1890, Section 12 - The court held that a parent does not have an absolute right to access until the child attains majority. The right of access is subject to the welfare of the child. The Family Court's order cancelling access to the daughters was upheld as it was based on their reluctance and welfare. (Paras 6-9) C) Family Law - Child Custody and Access - Child's Wishes - Relevance - Guardian and Wards Act, 1890, Section 17(3) - The court held that the wishes of a child of mature age must be given due weight. The daughters, aged 16 and 15, were capable of taking their own decision, and their reluctance to meet the father was a valid ground to cancel access. (Paras 4, 8)
Issue of Consideration
Whether the Family Court was justified in cancelling the father's access to his minor daughters based on their reluctance to meet him, and whether the father has an absolute right to access until the child attains majority.
Final Decision
The High Court dismissed the writ petition, upholding the Family Court's order cancelling the father's access to his minor daughters.
Law Points
- Child welfare paramount
- child's wishes relevant at mature age
- no absolute right of access
- court's discretion based on facts
