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The application came up for final disposal before Lentin, J. The learned Judge interviewed the children in his chambers before passing his order on the said application on 28.6.1979. As this happens to be the first order passed by the Court after interviewing and speaking to the children, it will be appropriate to set out the order which reads:

"I have talked to the children in my chambers. The boy completed 14 years of age and the girl has completed 8 years of age. I have found both the children extremely intelligent and sensible. Both appear to be distressed at the present state of acrimony between their parents. Both have expressed their desire to spend their time with each of the parents since it is not possible for them, in view of the-present state of affairs to spend their time with both the parents at the same time.

On 20.4.1981, the Court appointed Mrs. Clarice D'Souza B.A., B. Ed., holder of a Diploma in Social Service Administration of the Tata Institute of Social Sciences as a family expert to assist the Court in discharging its function in the matter concerning, the child with the observations:

"Parties are agreed that every facility will be given to Mrs. D'Souza for her to interview privately the child Gospi as also the parties themselves and the relatives and neighbours of the parties if Mrs. D'Souza desires to interview them or any of them. Both parties are further agreed that Mrs. D'Souza will be also at liberty to interview the A present as well as the former teachers of the child. The parties are further agreed that Mrs. D'Souza if she thinks it necessary to do so, will be at liberty to take the child and keep her with herself at her place for such period or periods, including overnight stays, as she thinks it necessary, to enable her to make a detached and fair report to the Court. We may mention that Mrs. D'Souza has stated to us that she does not desire any remuneration for the work she may do in this connection. In our opinion, however, it would be unfair to Mrs. D'Souza who in order to conduct this home study may have to travel from Colaba, where she stays, to Bandara by taxi to conduct these interviews and may have to spend at times the whole day in Bandara and may, therefore, also have to incur some other expenses over her meals or refreshments. We do not see why Mrs. D'Souza should go out of pocket. We will, therefore, decide after the home-study is concluded the amount that should be paid to Mrs. D'Souza out of the moneys which the parties have deposited with the Prothonotary and Senior Master mentioned above. In the first instance, however, we direct the Prothonotary and Senior Master to pay to Mrs. D'Souza towards the disbursement of the expenses which she will have to incur, a sum of Rs. 300 out of the aggregate sum of Rs. 600 deposited by the parties. For the present we are adjourning the matter as part heard in our Chamber at 2.45 p.m. On Tuesday the 28th April, 1981 for receiving Mrs. D'Souza's report if it is ready. On that day in case the report is ready, the parties are agreed that the Court should decide whether the report should be treated as confidential or should be disclosed to the parties. In case the report is not ready on that day, the parties are agreed that this matter should be decided on a date to which the matter will be further adjourned for the purpose of receiving the report and for deciding whether it should be kept confidential or not.

The appeal preferred by the appellant to the Division Bench of the Bombay High Court against the judgment and order passed by Mehta, J. on 19.2.1981 allowing the custody of the minor daughter to the father came up for hearing before a Division Bench of the High Court consisting of Jahagairdar and Ashok Modi, JJ. in October, 1981. It appears that in the course of the hearing of the appeal, the learned Judges had expressed their desire to meet the minor Gospi and directed that the minor Gospi should be brought to Bombay to enable them to see her. Accordingly, Gospi was brought to Bombay and was interviewed by the learned Judges at the residence of Modi, J. on 9th October, 1981. We may note that the learned Judges have recorded their impression of the interview with Gospi in a confidential note and had kept the same in a sealed cover for the benefit of this Court in the event of any such occasion arising. On the 16th of October, 1981, the Division Bench dismissed the said appeal of the appellant with the following order:-

In the facts and circumstances of this case we are however, not inclined to interview the minor daughter, as we are satisfied in the present case that the minor is not fit to form an intelligent preference which may be taken into consideration in deciding her welfare. We have earlier set out in extenso the various orders passed by the various learned Judges of the Bombay High Court after interviewing the minor and the learned Judges have recorded their impressions in their judgments and orders. The impressions as recorded by the learned Judges of the Bombay High Court, go to indicate that the minor has expressed different kinds of wishes at different times under different conditions. It also appears from the report of the Social Welfare Expert that these interviews cast a gloom on the sensitive mind of the tender girl and caused a lot of strain and depression on her. Torn between her love for both her parents and the acrimonious dispute between them resulting in the minor being dragged from court to court, we can well appreciate that the sensitive mind of the minor girl is bound to be sadly affected. Though the girl is quite bright and intelligent as recorded by the learned Judges of the Bombay High Court in their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarrasing situation because of the unfortunate relationship and litigation between her parents for both of whom she has great deal of affection, she is not in a position to express any intelligent preference which will be conducive to her interest and welfare. Mature thinking is indeed necessary in such a situation to decide as to what will enure to her benefit and welfare. Any child who is placed in such an unfortunate position, can hardly have the capacity to express an intelligent preference which may require the Court's consideration to decide what should be the course to be adopted for the child's welfare. The letters addressed by the daughter to her mother from Panchgani and also a letter addressed by her to her aunt (father's sister) also go to show that the minor cannot understand her own mind properly and cannot form any firm desire. We feel that sending for the minor and interviewing her in the present case will not only not serve any useful purpose but will have the effect of creating further depression and demoralisation in her mind.