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1 - 4 of 4 (0.20 seconds)Section 25 in The Guardians And Wards Act, 1890 [Entire Act]
Indira Khurana vs Prem Prakash on 19 December, 1996
(9) In matters like the present one, wherein acrimonious litigation is going on, allegations and counter allegations are made by the parties. Notice need to be taken only of those allegations which directly affect the minor or have a bearing on his welfare. Accordingly, the allegations made by the respondent with regard to the petitioner's low character and the alleged inquiry against him, pursuant to which he sought voluntary retirement, need not be given any weight. One thing which clearly emerges from a consideration of the pleadings, is that the petitioner on several occasions since 1992, had the child with him for overnight stay and had even taken him out of station with the permission of the Court. No specific instance of ill-treatment of the child or the petitioner having created any embarrassment due to, his alleged drinking habits has been alleged hitherto before. Petitioner has categorically stated that he has not been drinking since 1991. The learned Guardian Judge in passing the impugned order appears to have been influenced by an expression of wish by the child. The question of "intelligent preference" and ascertaining the wishes of the child while granting visitation rights came up for consideration before this Court in Indira Khurana Vs. Prem Prakash (60 (1995) Dlt 663). The Court held that where the question of custody of child is concerned ascertaining of the wishes of the children, especially when they are not at an age to make intelligent preference is a relevant and germane consideration. However, omission to do so while considering visitation rights would not be fatal. The Court observed as under: "THE Guardian Judge while exercising his judicious discretion in granting visitation rights can certainly ascertain the wishes of the children by meeting them. In fact, it would be desirable to do so. However, omission to do so in case of visitation rights cannot be fatal especially when there is sufficient material on record available otherwise, supporting grant of visitation rights. This is so in the instant case. The memorandum of understanding had been entered into on the 6th day of December, 1993. The petitioner has not pointed out anything attributable to respondent after 6.12.1993, which would render grant of visitation rights to respondent injurious to the mental and physical health of the children. The petitioner in terms of memorandum was willing to share, the vacation and give visitation rights to the respondent. Moreover, the expression of wishes of the children is very often conditioned by the persuasion of the party in whose exclusive custody the children have been. The Court, therefore, while ascertaining the mind of the children, has to be conscious of the fact that what the children say could be the reflection of the views of the estranged spouse and induced by him/her."
Section 12 in The Guardians And Wards Act, 1890 [Entire Act]
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