JUDGMENT
Manmohan Sarin, J.
(1) The petitioner by this revision petition assails the impugned order dated 9.8.1995 passed by Mr. R.S. Khanna, Guardian Judge, whereby the learned Judge directed the petitioner to send the children; i.e. two daughters to the respondent/father from 10 a.m. to 6 p.m. on Sundays. Further that the respondent would return the children to the petitioner at 6 p.m. on the same day. The above order was passed on the respondent’s application for visitation rights.
(2) Learned Counsel for the petitioner has assailed the impugned order mainly on the ground that the learned Guardian Judge allowed the application of the respondent and granted the visitation rights and interim custody to the respondent during that period, without ascertaining the wishes of the children. Learned Counsel for the petitioner assailed the order on the ground that it was the duty of the Guardian Judge to personally meet the children, ascertain their wishes and then only decide whether it would be in welfare of the children to grant visitation rights to the respondent.
(3) Learned Counsel for the petitioner submitted that the daughters viz. Radhika, aged 131/2 years and Nitika aged 12″ years were fairly matured and capable of making an intelligent preference. The learned Guardian Judge should have ascertained their wishes and attempted to find out the causes as to why the children were not willing to meet or have anything to do with their father. The impugned order it was submitted was against the welfare of the children. It was submitted that the respondent apart from treating the petitioner with utmost cruelty had also been cruel to the children. Reference was made to an incident when respondent allegedly beat up Radhika with a stick. It was stated that the children were petrified of the respondent and in fact used to either feign sleep or huddle in a corner when the respondent used to come home.
(4) Counsel for the petitioner in support of his submission relied on titled Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi. In the cited case the Supreme Court granted custody to the maternal uncle instead of the father. This was a case where the mother had died. Father was facing criminal charges under Section 498-A of Indian Penal Code. The Hon’ble Judges of the Supreme Court had spoken to the children and found them independent and more matured then their age. Children were bitter about their father and narrated various episodes of ill treatment of the deceased mother at the hands of their father. Children were unwilling to live with their father inspite of persuation by the Court. The Court assessing the state of mind of children reached the conclusion that it would not be in the interest and welfare of the children to hand over their custody to the father. The Supreme Court while granting custody to the maternal uncle granted visitation rights to the father, who was permitted to meet the children on holidays or any other day with prior notice and to take the children out of the appellant’s house for recreation, entertainment or for shopping, with the concurrence of the children. The Court further held that in due course, if he is able to win over the love and affection of the children, he would be at liberty to move this Court regarding modification of the order for custody.
(5) Counsel for the petitioner next relied on 1993(2) Sc 6=l (1993) Dmc 135 (SC) titled Chandrakala Menon (Mrs.) And Anr. v. Vipin Menon (Capt.)And Anr. In this case there was a divorce with mutual consent. The mother was doing her Ph.D. in Usa, while the father was a qualified engineer residing in India. A settlement had also been arrived at between the parties. The child was residing with her maternal grand parents. The case had arisen out of an attempt by father to take the child away from the maternal grand parent’s house. The Apex Court held that the question of custody of a child had to be decided on the sole and predominant criteria of what would best serve the interest and welfare of the minor. The Judges had spoken to the child in chamber and ascertained her wishes and sentiments. It was found that it would be in the interest and the welfare of the minor, that she remained in the custody of the mother. It was agreed that the mother would bring the daughters once in a year to India to enable her to live with the father. Further father was permitted to visit the child in USA. Counsel next relied on 1976 Hlr 731 titled Smt. Sarla v. Anand Rai Haarishankar. The learned Judge had spoken to the child to ascertain whether he would like to go to the father in London. The child has expressed his desire of not going to London. The Court held that the wishes of the child uninfluenced by the presence of others would have to be kept in mind though this cannot have any decisive voice in the matter. The Court held that in so far as the question of custody being passed in favor of one of the two parents, one of the two valid and germane considerations would be to take into account the wishes of the child. In Mrs. Prabhati Mitra v. DX. Mitra 1984 Hlr 387, the Court again outlined the principles for grant of custody. The first and foremost consideration is the welfare of the minor, the rights and wishes of the parents must be assessed and kept in mind as having bearing on the welfare of the child in addition with all other factors relevant to that issue. Mother’s custody is preferred, not because she has a prominent claim against other relations, but because of the care and supervision that the mother who is not at work can give. In this case also both the learned trial Judges as well as Avadh Bihari, J. had spoken to the children to ascertain their wishes. The Court further observed that it was not that the custody should go to the parents, who can give the child a better support, it was the happiness of the child and not its material prospects with which the Court is concerned.
(6) Relying on the above decisions Mr. Kataria, Learned Senior advocate, submitted that in all the above cases the Court prior to passing of any order had ascertained the wishes of the children by talking to them. Further that the wishes of the children was a weighty factor to be considered. The learned Guardian Judge having not done so, the impugned order was vitiated with material irregularity. Mr. Kataria further submitted that the children were so petrified of the respondent father that on Sunday when they were to be taken to the house of Mr. R.L. Tandon, the younger daughter they become extremely uncomfortable and developed nausea. Learned Counsel for the petitioner, thereore, submitted that the impugned order deserved to be set aside.
(7) Learned Counsel for the respondent submitted in reply that the allegations of ill treatment, cruelty and violent behavior made against the respondent were totally false. The petitioner had been tutoring the children and poisoning their mind against the respondent. Respondent also referred to a memorandum of understanding dated 16.12.1993 that had been arrived at between the parties and from which the petitioner was resiling.
(8) It would be relevant to reproduce the terms of the memorandum of understanding dated 6.12.1993 arrived at between the parties. “MEMORANDUM of Understanding We were married on 24.1.1981 and have now been living separately since 4.12.1991. We met today to finally settle our future relation but could not reach any conclusion either about cohabitation or about formal separation. However, following understanding was arrived at in regard to our daughters named Radhika and Nitika. (i) Both of us recognise that children need the love and attention of both parents for a homogenous growth and thus each parent would have free access to the children wherever they are. (ii) For the time being, the children would continue to stay with their mother during weekdays and with their father on weekends/holidays. (iii) During vacations each parent shall keep the children for such period as is agreed between them consistent with the wishes and the welfare of the children. Their trips outside Delhi during vacations shall be in consultation with each other. (iv) The children shall not be removed from outside India by one parent without the consent in writing of there other. (v) Neither parent would speak ill against the other or try to keep the children away from the other. Both would do their utmost to keep them happy and well looked after at all times. In witness we set our hands this 6th day of December, 1993.”
Counsel for respondent submitted that it is only when the question of grant of custody is involved that the ascertainment of the wishes of the children is important. However, visitation rights can be granted without any compulsive requirement of ascertaining the wishes of the children by meeting them. It was urged that the disinclination of children to meet the father was a result of the continues poisoning of their mind by the mother and such wishes should not be given any weight since it was in the larger interest of the children that they continue to have the love and affection of both the parents.
(9) The petition had come up before me on 16.8.1995 when notice of the same was issued’ on the ground limited to whether even for grant of limited custody or visitation rights, prior ascertainment of the wishes of the children is essential? Interim directions were issued for the petitioner to send the children on Sundays to the house of the Counsel for the respondent for the meeting with variation in time.
(10) Having considered the rival contentions, I find that in all the cases cited by the petitioner decision on grant of custody was involved. It goes without saying that when the grant of custody is concerned, ascertainment of wishes of the children, especially when they are at an age to make an intelligent preference is a relevant and germane consideration. In none of the cited cases, the question of visitation rights only was involved. In the cited cases, the Court was considering the grant of custody and while doing so, had also made provision for visitation rights. It is also significant that in these cases, visitation rights were granted to the spouse who did not have the custody. This is because there should be very strong reasons to deny visitation rights to any of the spouse. These could be cases say where the grant of visitation rights could be injurious to the mental and physical health of the children.
(11) 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 persuation 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.
(12) As observed earlier, I had as an interim measure, directed children to be taken to the house of Mr. R.L. Tandon, Advocate for the meeting with the respondent. This was in view of the disinclination of the children to go to the respondent’s house. I had called the children in my chamber on 6.9.1995 as two Sundays had elapsed from the date of the interim order, with a view to assess the progress as also to ascertain and understand the causes of apparent disinclination of the children to meet the respondent. After talking to Nitika the younger daughter and Radhika the elder one, together as well as with Radhika separately, I am of the view that their resentment to meet the respondent, would get diluted with passage of time and contact with the respondent. The respondent father should try to win their affection and assuage their hurt feelings. The reactions and the views of the children to a large extent stem from what they perceive as the desertion of their mother and their neglect by respondent. I had explained to both the children, the desirability of having the love and affection of the respondent father, for their future lives and impressed upon them that the respondent must be given an opportunity to make amends if they feel that they had been wronged. It was explained to the children that it was in their interest and welfare that the link with the father was not broken. After talking to the children and hearing them regarding their grievances, I am of the view that it would be in their interest and welfare that the respondent continues to have the visitation rights. However, in the facts and circumstances of this case, the impugned order would need some variation. At the initial stages a meeting with the respondent from 10 a.m. to 6 p.m. on Sundays would not be conducive in bridging the gap between the respondent father and children. Let both the children be taken by the petitioner every Sunday to the house of Mr. R.L. Tandon, Advocate from 2 p.m. to 7 p.m. to meet the father respondent for the next four months. During the visitation, it would be open to the respondent father to take the children out of the house for any entertainment or recreation. The petitioner would pick up the children from the house of Mr. R.L. Tandon, Advocate. Upon the expiry of four months, the visitation rights would be in accordance with the impugned order. The gracious offer of hospitality by Mr. R.L. Tandon, Advocate deserves to be appreciated.
(13) In the view that I have taken, the revision petition is liable to be dismissed. Even otherwise the main grievance of the petitioner does not subsist any longer since wishes and concerns of the children have been ascertained and assessed by talking to them. The revision petition is dismissed with the variation in meeting time as ordered.
