Both these petitions will be disposed of by this common Judgment and Order.

2.Custody petition is filed by the petitioner Smt.Swati Ashok Patel, praying that she be appointed guardian of her minor son Bhavin Harshad Patel. She has also sought declaration from this court that the Respondents Ramesh Ramanlal Gandhi and his wife Kokilaben have no right to claim either the custody or the guradianship of the said minor child Bhavin Harshad Patel.

3.Guardianship petition No.70/93 is filed by the petitioner Ramesh Ramanlal Gandhi, praying that he or some other fit and proper person be appointed as guardian of the person and property of the said minor child Bhavin Harshad Patel, with at liberty to the said person to pay, spend or utilise the income from the investments from the property of the said minor for meeting expenses of the said minor. Prayer is also made that permission be granted to the Petitioner to give the minor child in adoption.

4.It appears that this matter was argued before five other learned Judges, before it was taken up by me for hearing. It also appears that various orders came to be passed from time to time regarding access to Swati Ashok Patel who has been residing in U.S.A. with respect to the minor child Bhavin Harshad Patel who was in the custody of the Respondent Shri Ramesh Ramanlal Gandhi.

5.It also appears from the proceedings that the minor child Bhavin Harshad Patel was interviewed in Chambers by other learned Judges of this court, before whom this matter appeared, and Bhavin's views were ascertained and recorded by the said learned Judges. At the outset, Mr.N.D.Vyas, J. by his order dated 12th May, 1993 gave direction to the Prothonotary and Senior Master to appoint officer of the court as guardian-ad-litem, and accordingly, Mr.U.J.Mukadam, officer of the Court, was appointed guardian-ad-litem on 12.05.1993. It also appears from the proceedings that Mr.D.R.Dhanuka,J. directed that evidence be recorded in this case by officer of the court. Accordingly, Mr.R.S.Gajare, Taxing Master of the High Court, recorded the evidence in both the matters, and the evidence runs into 275 pages.

6.The minor child Bhavin Harshad Patel was interviewed in Chambers by me also. Thereafter, direction was given by me to the Principal Marriage Counsellor of the Family Court Mrs.Pratibha Gheewala to visit the minor child and interview him alone at his residence at Dahisar, and submit her report. Mrs. Gheewala accordingly submitted her report dated 24th June, 1996 which is on record.

7.Before me also, the matter was argued extensively, and both the learned advocates appearing for the respective parties, took considerable time to make their submissions.

8.To appreciate the submissions made by the respective advocates, few relevant facts must be stated which are as follow:-

9.The Petitioner in Custody Petition No.21/93, Smt.Swati Ashok Patel went to U.S.A. sometime in the year 1976. She stayed there at New Jersey with her brother Ramanbhai. Her other brothers and sisters also are settled in U.S.A. Smt.Swati Ashok Patel had already acquired degree in B.Com. in India. She fell in love with one Harshad Patel and married him in the year 1981 at New York. The marriage took place, according to the deposition of the petitioner Swati Ashok Patel in a Hindu Temple at New York. At that time, her age was about 27 years. Thereafter, she gave birth to a male child who was named as Bhavin. The said child was born on 6th February, 1983 at New Jersey. She came to India when Bhavin was about three months old, stayed here for sometime with her relatives and went back to America. There, she had some disputes with her husband Harshad Patel which resulted in a divorce by mutual agreement on 21st February, 1984.

10.As per the said agreement between Harshad Patel and Swati Patel, the custody of the child Bhavin Harshad Patel was to remain with Swati Patel and Harshad Patel was to pay 600 Dollars every month towards the maintenance of the child. As the story of the petitioner Swati Ashok Patel goes, Harshad Patel did not pay the said amount of 600 Dollars per month, towards maintenance of the child Bhavin, and as she found it difficult to maintain herself, she took up a job with the same employer, with whom she was previously working. A Spanish family used to do Baby-sitting for the child Bhavin and Swati Patel had to pay about 100 Dollors per week to the said Spanish family. She was getting about 1000 Dollors per month. According to the story of the petitioner Swati Patel, since her marriage with Harshad Patel was not approved by her family members, she did not get any monetary assistance or co-operation from the members of her family.

11.The petitioner Swati Patel, came to know one Ashok Patel at London through one of her relatives. That was sometime in the month of October, 1984. Her son Bhavin was with her at that time. She used to have discussions about her problems, and requested Ashok Patel to find out some solution. Ashok Patel assured her that he would talk to his friend in India, and find out some solution. Ashok Patel was unmarried at that time, and there was a talk between the petitioner Swati Patel and Ashok Patel about getting married to each other, Ashok Patel told her that he was not in a position to marry her immediately, as he had to wind-up his business at London, before shifting to America.

12.Thereafter, Ashok Patel had a talk on telephone with Respondent Ramesh Ramanlal Gandhi about Bhavin. He also wrote a letter to him. It was written in the said letter that Bhavin was the son of a friend of Ashok Patel, and that, the parents of the said Bhavin had expired in a car accident, and that, there was no one to look after him, and therefore, if the said Ramesh Ramanlal Gandhi would keep the child with him as an orphan child, financial aid would be given to him because parents of Bhavin had left a fortune of about four lakhs or so. Thereafter, Swati Patel came to India along with Bhavin. Ashok Patel also joined them at Frankfurt, and they all together landed India, and went to the house of Ramesh Gandhi at Dahisar. Swati Patel learnt that Ramesh Gandhi and Ashok Patel were working together in the same company sometime before, and they were friends. It was agreed that Ramesh Gandhi would take care of Bhavin. At that time, Bhavin was about 1 1/2 years old. Petitioner Swati Patel resided at her friend's place in Bombay, and on three-four occassions came to the place of Ramesh Gandhi to see whether the child was getting adjusted in his family. Ramesh Gandhi was residing along with his wife Kokilaben and his two daughters who were also minors. Thereafter, the petitioner Swati Patel and Ashok Patel left India on 6th January, 1985. Some cash was given to Ramesh Gandhi by Ashok Patel, and thereafter also, some cash amount was sent by Ashok Patel from America to Ramesh Gandhi for providing better facilities for Bhavin.

13.Thereafter, petitioner Swati Patel again came to India in the month of September, 1986 after about one year and nine months, after she left Bhavin with the respondent Ramesh Gandhi. She had brought V.C.R. for the Gandhi family, and also had brought toys for Bhavin. She went back to America in October, 1986. Thereafter, she again came to India sometime in July, 1987 that means after about a period of nine months, and stayed in India for about 25 days. She stayed with the family of one Mr.Dave at Dadar. In the year 1988, she did not come to India at all. Thereafter, she came to India in the month of March, 1989 along with Ashok Patel. They got married in India at Bombay on 25th March, 1989. Neither the Gandhi family, nor the minor son Bhavin was informed about this, nor were they present at the time of the alleged marriage of Swati Patel and Ashok Patel. The Petitioner had acquired American citizenship sometime in the year 1987. She gave birth to three daughters after her marriage with Ashok Patel, who are staying in America. Mother of Ashok Patel also is residing with them.

14.Petitioner Swati Patel again came to India in March, 1990, and stayed in India for about three months. She wanted to take Bhavin to different places in India. However, it appears that Mr.Ramesh Gandhi insisted that Bhavin should not accompany her alone, and that, all the family members should go together. Swati Patel however did not feel it convenient to move around with all the family members of Ramesh Gandhi, so she gave up the idea of taking Bhavin Harshad Patel alone, and she herself visited places like Sarangpur, Somnath, Gondal, etc. Thereafter, she went back to America. In the year 1991, she did not come to India at all, but come there on 6th February, 1992, as it was birthday of Bhavin. She had brought birthday gifts for him. According to the story of the petitioner Swati Patel she found the behaviour of Mr.Ramesh Gandhi some what strange, as he did not allow Bhavin to accompany her alone. She therefore felt distressed and discussed this with Ashok Patel. Thereafter, she came to India on 13th April, 1992. She wanted to take her son back to America. She stayed at her friend's house. She also had not informed Mr.Ramesh Gandhi about her visit to India. On coming to India, she found that Mrs.Gandhi i.e. Kokilaben had gone for Pilgrimage. After she came back, the petitioner used to go to Gandhi's house during day time. She noticed that whenever she handed over the cars which she had brought from America to Bhavin Harshad Patel, he would not take them unless daughters of Gandhi permitted him to take the cars. During this visit, the petitioner took Bhavin to the office of the Consulate General for renewing the passport, along with other members of Gandhi family.

15.When the petitioner Swati Patel came to India in April, 1993, she made an unsuccessful attempt to kidnap Bhavin Harshad Patel out of India. Bhavin, however, refused to embark the plane, and started crying. There was much hue and cry, and the police at the Sahar Airport were intimated, there was police complaint from either side and custody was handed over back to Gandhis. The petitioner had purchased ticket for herself and for Bhavin Harshad Patel for going to America and had passed Immigration counter. Mr. & Mrs.Gandhi were waiting outside the Airport. At the time of entering the aircraft, Bhavin however refused to accompany the petitioner. Thus, attempt of the petitioner to take Bhavin surreptitiously to America did not materialise. Relationship between Gandhi and Swati Patel had already deteriorated. Swati Patel also lodged complaint in the Metropolitan Magistrates Court, Borivali against Mr.Gandhi. Warrant was issued by the Court against Mr.Gandhi for producing Bhavin Harshad Patel in the Court. However, the said warrant could not be executed as Mr.Gandhi had left the premises along with his family members immediately on the next day of the Sahar Airport incident.

16.Thus, came the flash point, and Swati Patel filed Custody petition No.21/93, praying for custody of her minor child Bhavin Harshad Patel. Ramesh Gandhi also filed Guardianship petition No.70/93 praying that he or some other fit and proper person be appointed as guardian for the person and property of the said minor child Bhavin Harshad Patel. The proceedings kept on dragging for almost more than three years.

17.It is the case of the petitioner Swati Patel that she is the biological mother of the said minor child Bhavin Harshad Patel and since her former husband Harshad Patel, in pursuance to their mutual agreement had handed over custody of the said child to her, she was the guardian of the said child, as per the provisions of section 6 of the Hindu Minority & Guardianship Act, 1956. It is submitted by the petitioner that after all respondents were only strangers, and that, though custody of Bhavin Harshad Patel was initially entrusted to them, she always had a right and retained her right to claim back the custody of her own child, and that, the previous arrangement with the Gandhis was always revocable. She has submitted that unless it is proved that she is unfit to be the guardian of her minor son, no other person can be appointed as a guardian with respect to Bhavin Harshad Patel. According to her, the Gandhis had poisoned his ears and that is the reason why he was declining to come and stay with her, or even to talk to her, when in pursuance to the Court's order, she tried to have access to the child. It is further her case that she is a very wealthy person who can give all the comforts to Bhavin Harshad Patel, which he cannot get if he continues to stay with Gandhis. She thinks that if opportunity is given to her to talk to her child alone, and exclusively, she might be able to remove the misconceptions which he is having in his mind about her. Therefore, suggestions also is made on her behalf, that if Bhavin Harshad Patel is removed from the custody of Ramesh R.Gandhi and is kept at some boarding school at Panchgani or anywhere else, he will be away from the influence of Gandhis and in that case, he might change his mind and be agreeable to go to America with her. She admits that she did try to kidnap Bhavin Harshad Patel in the year 1993, but submits that she did so, because she was convinced that Gandhis would never permit her to take Bhavin along with her America.

18.The Respondent Ramesh Ramanlal Gandhi, on the other hand has submitted that it is not in the interest of the minor child Bhavin Harshad Patel to uproot him from the familiar and loving surroundings, and to take him to a foreign country where he will be totally at a loss with the new culture, new country, new faces, foreign language, company of step father, step sisters, and the mother of his step father.

19.It is argued vehemently by Ms.Rajni Aiyer along with Mr.P.R.Diwan, who have appeared for the Respondent Ramesh Ramanlal Gandhi, that this litigation the Respondent is fighting purely out of love for the minor child Bhavin Harshad Patel, whom he had brought up with fondness, love and affection for the last more then thirteen years.

20.Ms.Aiyer opened up her arguments with a statement that the entire proceedings should not be viewed from the adversarial point of view, like -`A v/s. B' and `B v/s. c', but that, all the parties concerned, should have only one intention in their mind, and that intention should be as to what ultimately is for the benefit and welfare of the minor child Bhavin Harshad Patel.

21.I entirely agree with Ms.Aiyer when she says so. In Guardianship and Custody matters, the paramount consideration is ofcourse that of the welfare of the child, and nothing else. The phrase "paramount consideration" has become so wornout that sometimes the real significance of that phrase is lost. Therefore, one must come to the root of the matter immediately as to what is this paramount consideration in which the welfare of the child Bhavin Harshad Patel lies, having regard to the facts and circumstances of the present case.

22.It is an admitted position now that the petitioner Swati Ashok Patel is the biological mother of the minor child Bhavin Harshad Patel. Ofcourse, the Respondent Ramesh Gandhi with whom the child Bhavin was entrusted by Swati Ashok Patel and Ashok Patel, when Bhavin was hardly one year and ten months old, Ramesh Gandhi was told by Ashok Patel that Bhavin was an orphan child and that, his parents had died in a car accident. It was under this impression that Ramesh Gandhi accepted the small bundle of joy called `Bhavin'. When this bundle of joy was handed over to Ramesh Gandhi, biological mother of the said child Bhavin was very much present. She however, did not disclose to Ramesh Gandhi that she was infact the mother of the said Bhavin. Infact, it is disclosed from the evidence which is recorded, that Ramesh Gandhi learnt about the petitioner being the biological mother of Bhavin much later. Bhavin is now about 14 years old, and is studying in 8th standard. He has been under the care and custody of the Respondent Ramesh Gandhi and his wife from the tender age of one year and nine months. Bhavin Harshad Patel was handed over to Ramesh Gandhi in the year 1984. However, the evidence does not disclose that Swati Patel ever tried to assert her parental rights till the year 1993. It means that for this period of about nine years, Swati Patel never made any attempt to legally assert her parental authority. In the year 1993, she did attempt to take him to America forcibly, but even prior to that, there was no attempt on her part to take him to America, unlawful or lawful, not any insistence on her part, or request from her side made to Ramesh Gandhi about taking Bhavin permanently to America, so that, she could enjoy the company of her son there. Atleast the evidence does not disclose this.

23.According to the Respondent Ramesh Gandhi, this sudden assertion of parental authority is not because she has got any real love or affection for the child, but that there are some other reasons, for which she wants the child now, after a gap of about nine year or so. It was the contention of the Respondent Ramesh Gandhi that in the month of April, 1993, some proceedings were initiated in the court at New Jersey about the arrears of child support amount which her former husband Harshad Patel had agreed to pay, but had failed to pay, and that, according to the Respondent Ramesh Gandhi, it was not a sheer co-incidence that the petitioner Swati Patel lodged Custody petition in June, 1993, claiming custody of her child Bhavin Harshad Patel.

24.After perusing the proceedings, it does appear that some proceedings were taken out by the petitioner for claiming arrears of the maintenance of child support from Harshad Patel, and matter was to come up for hearing in the month of June, 1993 in the Court at America. Therefore, it cannot be said that there is no substance whatsoever in the submissions made by Ms.Aiyer, appearing for the Respondent. In any case, this possibility cannot be ruled out howsoever rich and wealthy petitioner herself might be. It is also quiet possible that Swati Patel now wants custody of the male child Bhavin because she has three daughters from her second husband Ashok Patel, and no son. It is true that some amount, periodically was send by Ashok Patel for Bhavin. It is also true that this amount was invested by Ramesh Gandhi in the name of Bhavin in F.D.Rs. and there is nothing to show that he has spent that amount or enjoyed that amount for his purpose.

25.The report of the successive interviews of Bhavin Harshad Patel conducted by other Hon'ble Judges reveal that Bhavin H.Patel had flatly refused to go with Swati Patel. It appears that initially, he was not knowing that Swati Patel was his mother, but that gradually he came to learn about it, but refused to even talk to her inspite of knowing that. Even this court interviewed that child Bhavin Harshad Patel in Chambers and gave access to Swati Patel in the Chambers, in the presence of both the advocates. The Court observed that the child was sitting with his back towards Swati and was not willing to exchange even one word with her. When the court interviewed the child in chambers, the child categorically and positively made a statement that he wanted to stay with his Mummy and Daddy namely, Mr. and Mrs. Gandhi, and did not want to go anywhere with the petitioner Swati Ashok Patel. He admitted that he knew that Swati Ashok Patel was his mother, but stated that he did not like her, and that, loved only his Mummy and Daddy and his sisters namely daughters of Mr.Gandhi. Bhavin is now about 14 years old, and the court found that he was a matured young lad, capable of understanding the nature of things. Admittedly, Bhavin Harshad Patel is staying with Gandhis for the last 13 years, and it is quiet possible that he is under their influence. However, it is also abundantly clear that he is very much attached to them, and has strong ties of love and affection towards his fostered parents and his sisters. This court also directed the Principal Marriage Counsellor of the Family Court Mrs.Pratibha Gheewala to visit the child, and interview him, and submit her report to this court. In the said report of Mrs.Gheewala, it is observed by her that Bhavin Harshad Patel appears to be stable, but shows absolutely no interest in knowing about his real mother. The report states that though he knows that Mr. & Mrs. Gandhi are not his real parents, he is well adjusted in their family. As per the report of the Marriage Counsellor, Mrs.Pratibha Gheewala, opportunity should be given to the real mother to develop more contacts with him. Accordingly, order of access was granted, but somehow, Bhavin himself showed no interest whatsoever in meeting his mother.

26.Under these circumstances, the question is whether custody of the said minor child Bhavin Harshad Patel should be handed over to his biological mother, who is, legally speaking, his natural guardian as per the provisions of section 6 of the Hindu Minority and Guardianship Act, 1956, or, whether it should be denied to her, and prayer of the Respondent Ramesh Ramanlal Gandhi who has filed Guardianship petition praying for being appointed as a guardian of the child Bhavin Harshad Patel, should be granted. In short, granting of which, and whose prayer would be in the ultimate welfare and benefit of Bhavin Harshad Patel is the question which is to be decided by this court.

27.Mr.Vashi, appearing for the petitioner Swati Ashok Patel submitted that Swati A.Patel is the natural guardian of Bhavin H.Patel, and is not disqualified to be appointed as guardian, and in the absence of any claim of custody made by Bhavin's biological father Harshad Patel, custody has to be given to Swati Ashok Patel. It is submitted by Mr.Vashi that it is not that she had abandoned Bhavin, and that, she on and off used to come to India, only to see his, and that, Ramesh Gandhi ultimately was s stranger with whom some arrangement was made to keep her child for some time, and that the said arrangement could always be revoked. According to him, the attitude shown by Bhavin, and his conduct towards his mother, was because of the poisoning of his ears by the Gandhis, and that, if he was removed away from their influence, and was permitted to be taken to America, it would be beneficial for him. He has also argued that his mother is a wealthy person who can afford good education facilities for him at America, can afford to give him much wealthier and affluent life-style than what the Gandhis can give in India. Mr.Vashi insisted that for the time being, Court should consider permitting the child to be kept in a Boarding House, and thereafter, the child be permitted to be taken to America, so that, Swati Ashok Patel can have exclusive access to the child and an opportunity to clear the misunderstanding which Bhavin might be having in his mind about her. He relied upon AIR 1982 (S.C.) 1276 (Thrity Moshie Dolikuka v/s. Hoshiam Shavaksha Dolikuka) to advance his arguments that if the child Bhavin is kept in a Boarding House, it will be in his interest. Mr.Vashi also submitted that too much importance should not be given to the contents and outcome of interviews of the child, and the opinion or the wish expressed by the child, should not be given much weightage, because the child, in all probability, is tutored, and therefore, if the wish of the child is given much weightage by the court, it will amount to as if the party who has tutored the child, has dictated the wish. He further argued that the court of its own, should consider what ultimately is for the benefit of the child in a given set of facts and circumstances of the case.

28.As far as relevance put by Mr.Vashi on Supreme court Judgment in AIR 1982 (S.C.) 1276 (Thrity Hoshie Dolikuka v/s. Hoshiam Shavaksha Dolikuka), it must be pointed out that in that case, the Supreme Court had held on facts and circumstances of that case, that the best way to serve the welfare and interest of the girl aged about 11 years, would be to remove the child from unhealthy atmosphere at home, which had caused a great strain on her nerves, and had certainly affected her healthy growth, to the Boarding School, where she could live a normal healthy life and would have a good opportunity of proper education and healthy growth.

29.It is to be kept in mind that in the above referred Supreme Court Judgment, the dispute with respect to the custody of the child was between husband and wife. The atmosphere in the house was unhealthy because of the constant fights between the husband and wife, the atmosphere was very much polluted and unhealthy, and was certainly not conducive to the upbringing of the child, and it was under these circumstances that the Supreme Court stated that it would be better for the child to be removed from such atmosphere to save her from the agony of seeing her parents fight amongst themselves who were both very much dear to her , and the child be kept in a Boarding House.

30.In the present case, the facts are entirely different. It is nobody's case that Mr.& Mrs.Gandhi are fighting amongst themselves, and that, the atmosphere in their house is not conducive to the upbringing of Bhavin. Infact, he is enjoying the utmost love of his fostered parents and his sisters. He is well integrated into Gandhi family; not only into Gandhi family. but even into their extended family i.e. relatives of Gandhis. The Gandhis have brought him up as their own son, they have showered all their love and affection on this boy, who, they were told was an orphan, when he was first handed over to them. As years passed by, the bond of love was cemented and now they have become inseparable from each other. Gandhis cannot bear the idea of their beloved son leaving them, nor Bhavin bears the idea of leaving his fostered parents and going anywhere else. though he is fully aware that they are only his fostered parents. This is the intensity of the bond of love between them. He is going to a nearby school, which he likes. He has become one with Gandhi's family. He is firmly rooted into their family and in the surroundings.

31.As per provisions of section 6 of the Hindu Minority & Guardianship Act, 1956, in the absence of father Harshad Patel, Swati Ashok Patel has to be regarded as natural guardian of Bhavin. However, it is a well settled position of law

that children should not be relegated to the position of chattels and that parents rights should be relegated to back ground, keeping in view the welfare of the child. This is what the Calcutta High Court has stated in Uma Talpatra v/s. Manabendra Talpatra reported in 1996 (1) ICC.

32.In Tarun Ranjan Majumdar v/s. Siddhartha Datta reported in AIR 1991 CAL 76 [LQ/CalHC/1990/178] , the Court reiterated the cardinal principle that in matters relating to custody of the child, its not the legal right of the claimant which is decisive, but it is the welfare of the child which is the primary and paramount test and no one can recover custody of a child merely by brandishing his legal right or financial affluence. In this case, an application was made by the father for custody of his three year old child, who was staying with his natural grand parents even since he was 11 months old, when his mother died. Under section 25(1) of the Guardians and Wards Act, 1890. "If a ward leaves or is removed from the custody of a guardian of his person, the court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return." The court found that the child was being very well looked after, and there was no reason to return him to the father. The court observed:-

"Even if a child is in the custody of one who has no legal right thereto, and its welfare is reasonably looked after in a manner in which it should, the legal guardian cannot claim an order of return or recovery merely on the strength of his legal right and by parading his financial or other capacity to provide a welfare custody, unless the court forms a definite opinion that even though its welfare is reasonably looked after such order of return would be for its better or further welfare................ A legal guarding cannot claim such an order merely by dangling his legal right, ...........................................".

33.The position is identical in the present case at hand also. The petitioner Swati Ashok Patel cannot dangle her parental right, nor can she parade her financial or other capacity to provide a welfare custody. From the evidence on record, I am satisfied that the welfare of the child lies with his continuing to remain in the custody of his fostered parents, namely the Gandhis, and not by sending him to America where he will be in the company of strangers.

34.Let us imagine for a moment, how life of Bhavin H.Patel will be, if he is permitted to go to America along with Swati Ashok Patel. At present, Bhavin Harshad Patel is well integrated into the family of Gandhis. He is to be uprooted from his familiar surrounding from his fostered parents, whom he loves and who love him, from his dear sisters, from the entire familiar surroundings, and this sapling is to be planted in the foreign soil of America in the alien culture. When I interview the child Bhavin Harshad Patel, I found that he could speak only in Gujrathi, Hindi and in broken English. Infact, he was more at ease in Hindi and Gujrathi, and not in English at all, though he told me that he was studying in a English Medium School. After going to America, there will be not only immediate language problem, but the culture will be a totally foreign culture, which this 14 years old lad will find difficult to adjust with. Bhavin is not familiar with his mother. He does not know her. He does not like her. If Swati Ashok Patel takes him to America, Bhavin Harshad Patel will be staying with Swati Ashok Patel, her husband Ashok Patel, their three daughters, and mother-in-law of Swati Patel, who is the mother of Ashok Patel. Bhavin atleast knows Swati Patel by face by this time, but he does not know his three step sisters, nor does he know Ashok Patel or his mother. One can well imagine how miserable he will feel in the company of these strangers. We do not know what will be the attitude of his three step sisters towards Bhavin, who has appeared all of a sudden on the scene, and has become intruder into their own family. We do not know whether they are made aware of the fact that there exists one step brother of theirs, whether his photographs is shown to those sister whether photographs of the step sisters are shown to Bhavin, and whether a background is laid for the joining of Bhavin with them in America. We do not know what will be the attitude of the mother of Ashok Patel towards Bhavin, It will not be unreasonable to infer that this old lady will not look very kindly upon the step son of her son or the son of her daughter-in-law from her previous marriage to one Harshad Patel. It also will not be unreasonable to infer that there could be preferential treatment by her and Ashok Patel in favour of his three daughters as against Bhavin, who is not related by blood to either Ashok Patel or to his mother. We do not know how much attention Swati Patel herself will be able to give to Bhavin, once she is back to America and is amidst her three daughters, second husband Ashok Patel, and her mother-in-law. One can visualise that in all probability, Bhavin will be left alone in a total strange atmosphere, staying with strange people on a foreign land, who speak foreign language. Will this type of atmosphere be conducive to Bhavin's health physical as well as mental Will this type of atmosphere will be in his interest and benefit In my opinion, the answer will have to be given in the negative.

35.During the course of proceedings, when evidence was being recorded, Respondent examined as his witness No.5, Dr.Paresh Dhansukhlal Lakdawala, a Psychiatrist, who stated in his deposition that after talking to Bhavin, he has submitted his report at Exhibit 24, wherein, he had mentioned that Bhavin was very well settled in the family of Ramesh Ramanlal Gandhi, and that, on being questioned about his mother, Bhavin had no shown major concern, and mentioned that he had not attachment with her and did not know her name. A question was asked to this witness, What would happen if Bhavin would be placed in the home of his natural mother, and whether it was likely to affect him, and if so, in what manner

36.The answer given by Dr.Lakdawala appears at page No.249 of the Notes of Evidence. It will be convenient to reproduce his answer as given by him. It is as follows:-

"Ans: Yes. From the circumstances mentioned above, it may affect Bhavin. In this particular case, three aspects have to be looked into (1) Separating the child from a family where he has been living and well settled for last about nine years: (ii) Adjustment of this child in a new family; (iii) Going in a new environment or a new culture. There are again three broad-speaking consequences which may occur, (1) Short term or immediate problems, (2) This child is at present at a developmental stage i.e. pre-adolescence stage and after few years, will enter into adolescence stage, (3) Long standing personality develop-ment in many years to come."

37.Mr.Lakdawala in his deposition at page No.252 of the Notes of Evidence also stated that this child was more likely to develop psychological problems if he was separated from the family of his desire and was taken to different culture, and was made to adjust with a new family where many strangers existed.

38.It is not that the Courts have always asserted or vindicated the parental rights for the purpose of giving custody to them. In the matter of Saithri, a minor, Jainoo, petitioner v/s. M.F.Abrams, Respondent, reported in Volume XVI of Bombay series page 307, the court refused to hand over custody of the said minor child Saithri, who was about 15 years of age to her natural Guardian, namely, her mother. In this case also, the minor did not want to go back to her mother. The court held that a boy of 14 years and a girl of 16 years, had a right to choose their own residence. Needless to say that in all such matters, the Court always keeps in mind what is beneficial to the child and what is ultimately for his welfare and his interests.

39.Ms. Aiyer appearing for Respondent Ramesh Gandhi relied upon Judgment of this court (Coram: M.L.Pendse, J.) in Notice of Motion No.1738/85 with Notice of Motion No.2554/86 in Misc. petition No.570/80. In this case, two minor daughters of the Respondent Jamnibai Dhangda were found mission from the house when Jamnibai and her husband had gone to forest to collect woods. She made all efforts to find out her minor daughters. However, those two minor daughters were missing. After due search was taken by the police to find our their parents they were produced before the Juvenile Magistrate who declared them destitute and remanded them to a Remand Home. Form there, those daughters were put in for adoption and were sent to Sweden where they were adopted by the Swedish petitioner Eriksson according to the Swedish Laws. The girls became Swedish Nationals, knew only Swedish and French language, lost total touch with their original mother tongue namely, Marathi, and were not willing to go back to India and insisted on staying to Sweden only. Under these circumstances, Justice Mr.M.L.Pendse, after discussing many other cases of the like nature relating to custody and guardianship, came to the conclusion that custody of those daughters should not be given to Jamnibai who was the biological mother of those daughters and who was deprived of their custody for no fault of hers. He stated that as such the daughters were taken in adoption by petitioner, a Swedish National, and under the Swedish Law, the adoption was irreversible, and that, apart from this, it was not in the ultimate benefit and interest of those girls to come back of India, and stay with their mother. He also quoted from House of Lords case reported in 1970 Appeal Cases 669, stating that parental rights were not absolute and remained qualified when the question of total welfare of the child arose, and that, the dominant matter for consideration of the court was always the welfare of the child, and that, the word `welfare' must be understood in its widest sense, and was not be measured by money only. nor by physical comforts. It was further observed that the court could not sacrifice child's welfare to the fetish of parental authority by tearing child away from happy and comfortable home of adoptive parents only with a view to establish the legal rights.

40.Bhavin's roots are so deeply ingrained into this social now, that if this delicate sapling is uproot from here, and is tried to be planted in the soil of America, it certainly will be dried up and drained up. This will be a traumatic experience for him. Deposition of the phychia-tirst Dr.Lakdawala, so also, the report of the Principal Marriage Counsellor of the Family Court Mrs.Pratibha Gheewala says so.

41.There is also another angle to this. It was come in the evidence that Bhavin's biological father's brother has initiated some proceeding about the custody of Bhavin. It means that after undergoing interviews by various Judges of this court, and facing the litigation indirectly, he will have to face another bout of litigation in United States, and go through the same traumatic experience once again. It is not known whether Bhavin's mother Swati Ashok Patel was legally married to Harshad Patel, because in the Deed of Agreement arrived at between Swati Patel and Harshad Patel, there is no whisper about their marriage; there is no decree of divorce, atleast it is not produced here when the evidence was being recorded and when specific query was made about the deed of divorce. Petitioner Swati Patel at that time stated that she did not have the decree of divorce with her. In the agreement between Harshad Patel and Swati Patel, what is mentioned is only about the child support to be paid by Harshad Patel towards maintenance of Bhavin, and about the custody remaining with Swati Patel. Since no decree of divorce was produced and since no positive statement is forthcoming about the decree of divorce being available, it is doubtful whether Swati Patel's second marriage to Ashok Patel is legal and valid. I am aware that whether Swati Patel was legally divorced from Harshad Patel and whether her subsequent marriage to Ashok Patel is valid or not, is not the issue before me. However, the only thing which has to be stated on this aspect is that if Bhavin gets embroiled in all this controversy, the outcome will not be conducive to his welfare and he should be kept away from all this controversy, when he is on the threshold of adolescence and manhood.

42.It also has to be kept in mind that the conduct of Swati Patel has all through-out been extremely selfish. She parted, of her own, with the custody of Bhavin because at the relevant time, it was not convenient for her to have Bhavin with her. Her role in giving away Bhavin to Mr.Gandhi was active, and Bhavin was kept with Mr.Gandhi with not only of her full knowledge but with her consent. She allowed Bhavin to stay with Mr.Gandhi for about ten years. In the meantime, she married somebody else, got three daughters from her second husband and when it suited her, she filed petition for custody of Bhavin. It is true that when a child is entrusted to another person for a specific purpose by the natural guardian, the previous arrangement is revocable. However, if the revocation is detrimental to the interest of child, that should not be permitted, keeping in mind that welfare of the child. In the present case at hand, Swati Patel consciously allowed to be represented, atleast initially, that Bhavin was an orphan child, and that, his parents were killed in a car accident. Being a biological mother of Bhavin, she might be having love for Bhavin, but at the same time, influence of other factors like Swati Patel having only three daughter and no son from Ashok Patel, and claiming of maintenance of child support which was assured by Harshad Patel, but was never given, cannot be overlooked. It means that even now, she has got selfish interests and motives in seeking custody of Bhavin. Bhavin was born in America and therefore, has an American Passport. It was revealed that Swati Patel during the course of the present proceedings also, made attempts to get deportation proceedings initiated against Bhavin, and Justice Mr.Variava had to pass order dated 15.10.1993, directing the police authorities not to deport Bhavin during the pendency of the present proceedings. It is also to be remembered that attempt of Swati Patel to forcibly remove Bhavin out of this country was a traumatic experience for Bhavin. In the interest of child, she should refrain from doing any such things. Even now, all the doors are not closed for Swati Patel. Bhavin is about 14 years old now. Once, he become major, he will be more mature and will be in a position to take decision by himself whether he would like to go to U.S.A. for his further studies. That choice should be left to him only. No purpose will be served by forcing him to leave the place he loves and to go to a strange, foreign place. It will be hard to say that Swati Patel is unfit to be appointed as a guardian of Bhavin, however, taking into consideration the peculiar facts and circumstances of this case, it will not be beneficial or in the interests of the child Bhavin to hand over custody of him from Gandhis to Swati Patel or to appoint her as a guardian of minor Bhavin. Ramesh Gandhi has proved to be a lovable foster parent. It is not shown that he has got any extraneous reasons for fighting from custody of Bhavin. It therefore must be said that the whole exercise is taken by Mr.Gandhi upon himself, purely out of love and affection, which he has for Bhavin. That love and affection has to be recognised and taken cognizance of. Bhavin is no doubt a bundle of joy, but this `bundle' is not inanimate. It is a bundle of emotions and sentiments and these emotions have been categorically and emphatically expressed by Bhavin, while consciously refusing to go with Swati Patel and making a positive statement about his continuing to stay with Gandhis only. These sentiments also have to be given weightage and cannot be brushed aside. Hence, the following order:-

ORDER

Custody petition No.21/93 is dismissed.

Following order is passed on Guardianship petition No.70/93. Petitioner Ramesh Ramanlal Gandhi is appointed guardian of the person and property of the minor child Bhavin Harshadbhai Patel with liberty to him to pay, spend or utilise the income from the investments thereof for meeting the expenses of the said minor Bhavin Harshadbhai Patel.

Petitioner Ramesh Ramanlal Gandhi will continue to have custody of the said minor child Bhavin Harshadbhai Patel till he attains the age of majority.

Minor child Bhavin is not to be removed from the jurisdiction this court forcibly or by way of deportation, etc.

The Respondent Swati Ashok Patel however, is granted access to the said minor child Bhavin Harshad Patel, whenever she come to India, and this access, the petitioner Ramesh Ramanlal Gandhi must give to the Respondent Swati Ashok Patel, subject ofcourse to examination schedule of school hours of the minor child Bhavin.

Both the petitions are accordingly disposed of in the above stated terms. No order as to costs.

Guardian-ad-litem Mr.U.J.Mukada, appointed by this court on 12.05.1993, is discharged.

In view of this order, Interim petition No.12/96 is also deemed to be disposed of with no order as to costs.

As per the request of Mr.Vashi, passport produced by the Respondent Swati Ashok Patel during the course of proceedings and which is kept with the prothonotary and Senior Master in safe custody, be returned to the Respondent.

Prothonotary and Senior Master to act on the copy of the minutes of this order, certified and authenticated by the Chamber Registrar.

Issuance of Certified copy be expedited.