Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM PETITION NO.2 OF 2008
IN
SUIT NO.5 OF 2006
Mrs. Hutoxi M. Panthaki ...Petitioner
Vs.
Mr. Kersi J. Divecha ...Respondent
Ms. Sanober P. Nanavati for Petitioner
Ms. Anusuya Dutt for Respondent
CORAM: SMT.ROSHAN DALVI, J.
ND
DATED: 2 JULY, 2008
P.C.
1. The parties are wife and husband. They have 2 children,
sons named Jehan and Sheroy. They shall be referred to as
mother and father.
2. They applied for divorce by mutual consent in the above
th
suit on 20 February, 2006. They filed consent terms. In the
consent terms the mother gave up her claim to alimony or
maintenance. She also gave up custody of both the children.
The father was to have custody of both the children. The
mother was to have access on second and fourth week ends
and half school vacations.
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2
3. The parties were married in 1992. Children were born
in 1992 and 1998. The mother left the matrimonial home in
2004. They filed the divorce petition in 2006. The mother
remarried in 2007.
4. At the time of the filing of the consent terms Jehan was
13 years and Sheroy was 7 years old. Jehan was studying in
standard VIII and Sheroy was studying in Standard IV.
5. The mother did not take access to the children in the
school vacations in 2006.
6. It is her contention that, that was because she did not
want to disturb the children's studies. She married soon
thereafter. She has now settled with her new husband in
Vikroli. She claimed access during the last summer vacation
of May, 2008. She was to hand over custody of the children
to the father at the end of the May vacation. She did not
hand over the custody as per the consent terms signed by
them. She instead filed this Petition for modification of the
consent terms. She has applied for grant of custody and
change of school of the children.
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3
7. On the face of the consent terms she is in breach. The
Consent terms came to be a part of the order of the Court.
Having breached that order, she is in contempt. It need
hardly be mentioned that she should have abided the order
of the Court and returned the children to the custody of the
father pending any application for modification of the
consent terms made by her. She has not done that on the
ground that the children never wanted to return to the
father.
8. This change of heart has come at a very late stage. It
has come after her remarriage and after she has settled with
her new husband. It has come after the children were left to
be cared for by the father for about 4 years. The father has
not remarried. He lives with his mother and his two children
at Parel. She lives with her present husband at Vikroli.
9. When she left the husband in 2004 she lived with her
parents at Thane. She has stated that she did not take
custody of the children then, because her parents' house
was small in area.
10. The father has contended, and primafacie justifiably,
that she did not take custody of the children before her
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4
marriage whilst she wanted to be alone and away from her
children. It was during those times that the father cared for
the children and kept their custody. He contends that now
she has well settled. She has sought to take away the
children to be used as her investment as she has advanced
in age.
11. Various allegations are made by her in the Petition to
show how the father is unfit to have custody of the children.
This is despite the fact, that upon whatever was the
dispossession of the father, she had allowed him to have
custody of the children in the consent terms and obtained
the divorce and remarried thereafter.
12. She has produced xerox copies of certain documents
showing expenses incurred for the children. Most of the
documents are of the year 2008. It is seen that during the
summer vacation when she kept custody of the children she
incurred certain expenses. That is natural. She has
produced certain bills of certain stores showing purchase of
materials. These do not show who purchased the goods and
for whom. She claims that the father did not incur sufficient
medical expenses for medical treatment of the children,
which she has done. The father has produced copies of
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5
medical prescriptions and bills showing what he has done for
the children. It is not understood how both the parties lay
so much emphasis upon medical treatment for the children
over other expenses.
13. No complaint was made about what the father failed and
neglected to do in the year 2006 or 2007. The first
complaint has been made in this Petition itself. The
allegations of the mother go thus far.
14. The Petition has come up before me on a number of
occasions since the reopening of the Court after summer
vacation. I have interviewed the children, and the parents
singly as well as jointly. I found that the children are highly
stressed, anxious and nervous. I have stated my
observations in earlier orders.
15. I deemed it fit that both the parties as well as the
children need counselling. I sent them to the child
Counsellor / child specialist from the Tata Institute of Social
Services (TISS) who serve at the Family Court, Mumbai
through the NGO, “MUSKAAN”. The child specialist/ senior
Counsellor Ms.Freny Italia and junior Counsellor Ms.
Swapna Redij, have counselled the children on atleast 3
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6
occasions. The parents have also been interviewed by them.
The father was directed to obtain access to his children
pending this Petition whilst the children were allowed to be
with the mother, despite the breach of the consent terms
th
dated 20 February, 2006 to maintain the statusquo that
prevailed at the time of the Petition.
16. The option of sending the children to boarding school, in
which they would be away from the strained relationship of
both the parents, with their friends and where both parents
can have equal access to them, was considered. The option
has not materialised.
17. The Counsellor submitted an interim report, copies of
which were given to both the parties. Further counselling of
the children was done thereafter also. The mother has
allowed access as directed. The father has taken access in
the presence of the Counsellors. The Counsellors have
submitted a further report to Court today. The report inter
alia shows the following aspects:
i) Children had overcome their initial resistance to the
father and had began interacting with him and the
grandmother.
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7
ii) Jehan cares for his father and his grandmother
though there is no overt display.
iii) He yearns for greater attention and display of
affection from his father, whom he feels loves his
brother more.
iv) The children are strained due to parental
differences.
v) The father is strict and disciplined them which
makes Jehan rebel.
vi) Sheroy can be easily influenced.
vii) He gets bullied at school.
viii) There is a strong bond between the brothers.
ix) The children seem to be heavily influenced by
the mother as was apparent in their talk and
tone, which was identical to what the mother
shared or expressed.
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8
x) The father provided well for the children for their
education and basic needs.
xi) He needs counselling.
xii) There is no reason to doubt that he will not
continue to provide for his children in the future.
xiii) The mother was now in a position to take care
of her children and cites this as her earlier
reason for giving away custody of the children to
the father.
xiv) Both parents instigate the children.
xv) Jehan has taken the role of the mother's
confidante, which is unhealthy for his emotional
development.
18. Both the parents, the present husband of the mother as
well as the grandmother have attended my chamber on all
the dates of hearing. The children attended once before.
They have attended today.
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9
19. Jehan expressed his desire to speak to me. I have
allowed him to speak to me. He has parrotlike narrated the
facts and allegation urged by his mother, argued by his
Advocate and stated in this interim application.
20. It may be mentioned that when I interviewed the
children, I had not asked them directly when they would
want to live with. That would have been the most
inappropriate question. Children in the custody of one of the
parents, and more so when there is so much resistance and
acrimony between them, are essentially and considerably
tutored. That is the case in this Petition also. That has been
specifically noted by the Counsellors as shown in item No.ix
above.
21. Sheroy also spoke to me. He was more brief. He stated
what he would want. In short, without being questioned,
and on their own desire the children stated that they wanted
to be with the mother.
22. This is hardly a sagacious, informed choice. It is more
apparent in view of the fact that Jehan spoke at length and
exactly as his mother had stated earlier as has been noticed
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10
by the Counsellors also. It would be most inappropriate and
improper to consider that as the choice of the children. The
Court has to determine the interest and welfare of the
children. The Court may interview the children. The
interviewing must be in keeping with the circumstances.
The Court must try to ascertain upon asking questions and
obtaining answers, the true position of the children,
emotionally as well mentally and determine where their
interest and welfare is. It has been held in the case of
Thirty Hoshie Dolikuka Vs. Hoshiam Shevaksha
Dolikuka, that :
“where the child is not in a position to express
any intelligent preference between his/her
parents, as in this case, mature thinking is
necessary to decide as to what will enure to
his/her benefit and welfare. In such a situation
therefore, it is not necessary to send for the
minor and interview her to ascertain her wishes
before proceeding to decide the question of her
custody. Personal interview of the child is also
to be avoided when she is torn between the
affection for both parents and such interviewing
would further cause depression and
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11
demoralisation in her mind.”
23. Giving the custody of the children to the parent who has
kept custody upon hearing a parrotlike statement cannot
determine the child's welfare. I do not mean to suggest that
the welfare of the children would not be heeded by the
mother in this case. She has married a very reasonable
person. He has attended Court on every date of hearing. I
have spoken to him also along with the mother. It is to his
credit that the father has not made allegations of what the
mother or her husband did not do.
24. However, what is important in this case is that the
children have been well cared for by the father for 4 years
whilst the mother essentially abandoned them. Whatever be
her justification, the fact remained that the father was the
single parent for a number of years. There was no complaint
and no application. The situation of change of heart,
therefore, cannot show the demerits of the father's
upbringing.
25. The fact remains that the mother is in breach of the
th
Court's order as reflected in the consent terms dated 20
February, 2006. The father has complained of the breach
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12
th
from 10 June when he was denied custody. The children
have been brainwashed by the mother during this period.
The children deserve the love and affection of both the
parents. They must in turn love both the parents. Any
upbringing which runs counter to these basic principles is
itself against the interest and welfare of the child and must
be eschewed.
26. In this case the further fact is the breach of the order
already passed and coupled with the mother's initial
abandonment.
27. Since all the allegations made against the father are not
substantiated at all, the case for modification rests only
upon the change of mind and the change of heart of the
mother. In that case the mode exercised by her is seen to be
completely incorrect. The children must be given a chance
and an opportunity to be with the father to obtain the best
out of him. The children must continue with their access to
the mother as before to obtain the best out of her.
28. Both the parents have been seen to be instigating the
children as is reflected in Clause XIV of the Counsellor's
report extracted above. In fact the father is advised further
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13
Counselling as is reflected in Clause XI extracted above.
This would be more so as the children consider him
extremely strict, a fact easily observed by this Court also.
Similarly because both the parents are seen to be instigating
the children, a fact noted by this Court also, they would need
a further counselling to win over the children, specially
Jehan, who believes his father does not love him as much as
his brother. However, there is no one else the children can
go to. None is seen to be particularly better than the other.
29. Despite my entreaties and observations, I have not
found any improvement in the upbringing of the mother as is
reflected in the Counsellors' last report shown to me today,
which shows how the children have been
“heavily
by the mother as reflected in clause IX of the
influenced”
report extracted above.
30. This is not the case in which the Petition can be
disposed of by way of a final order. In Custody matters
modification of the order is the rule rather than the
exception. However, modification must be in accordance with
law and upon obeying of the law. Breach of orders cannot be
lightly allowed in the name of modification except if gross
acts of neglect or demerits of a parent having custody are
::: Downloaded on - 26/06/2024 07:32:33 :::
14
shown. Hence, the following order:
ORDER
1.The custody of the children is restored to the father.
2.The children Jehan and Sheroy are directed to go
with their father to his home.
3.Both the children as well as the father shall
continue to be counselled by the same Counsellors.
They shall go for counselling Sessions on Tuesdays,
Thursdays and Saturdays as before. This shall
continue for a period of 1 month.
4.The father shall pay the Counsellors' fees for each
counselling session as determined by the
Counsellors.
5.The other terms between the parties remain
unchanged. The children, however, will be entitled
to talk with the Mother on telephone whenever they
desire.
6.The Counsellor shall submit further report to the
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15
Court at the end of one month from today. Since
the children feel that the father is very strict and has
on occasions beaten them, the father is specially
adivsed to be milder with the children:
7.The further future custody shall be determined
based upon the Counsellors' further report.
8.The children have been explained this order by the
Court.
(SMT. ROSHAN DALVI, J.)
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IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM PETITION NO.2 OF 2008
IN
SUIT NO.5 OF 2006
Mrs. Hutoxi M. Panthaki ...Petitioner
Vs.
Mr. Kersi J. Divecha ...Respondent
Ms. Sanober P. Nanavati for Petitioner
Ms. Anusuya Dutt for Respondent
CORAM: SMT.ROSHAN DALVI, J.
ND
DATED: 2 JULY, 2008
P.C.
1. The parties are wife and husband. They have 2 children,
sons named Jehan and Sheroy. They shall be referred to as
mother and father.
2. They applied for divorce by mutual consent in the above
th
suit on 20 February, 2006. They filed consent terms. In the
consent terms the mother gave up her claim to alimony or
maintenance. She also gave up custody of both the children.
The father was to have custody of both the children. The
mother was to have access on second and fourth week ends
and half school vacations.
::: Downloaded on - 26/06/2024 07:32:33 :::
2
3. The parties were married in 1992. Children were born
in 1992 and 1998. The mother left the matrimonial home in
2004. They filed the divorce petition in 2006. The mother
remarried in 2007.
4. At the time of the filing of the consent terms Jehan was
13 years and Sheroy was 7 years old. Jehan was studying in
standard VIII and Sheroy was studying in Standard IV.
5. The mother did not take access to the children in the
school vacations in 2006.
6. It is her contention that, that was because she did not
want to disturb the children's studies. She married soon
thereafter. She has now settled with her new husband in
Vikroli. She claimed access during the last summer vacation
of May, 2008. She was to hand over custody of the children
to the father at the end of the May vacation. She did not
hand over the custody as per the consent terms signed by
them. She instead filed this Petition for modification of the
consent terms. She has applied for grant of custody and
change of school of the children.
::: Downloaded on - 26/06/2024 07:32:33 :::
3
7. On the face of the consent terms she is in breach. The
Consent terms came to be a part of the order of the Court.
Having breached that order, she is in contempt. It need
hardly be mentioned that she should have abided the order
of the Court and returned the children to the custody of the
father pending any application for modification of the
consent terms made by her. She has not done that on the
ground that the children never wanted to return to the
father.
8. This change of heart has come at a very late stage. It
has come after her remarriage and after she has settled with
her new husband. It has come after the children were left to
be cared for by the father for about 4 years. The father has
not remarried. He lives with his mother and his two children
at Parel. She lives with her present husband at Vikroli.
9. When she left the husband in 2004 she lived with her
parents at Thane. She has stated that she did not take
custody of the children then, because her parents' house
was small in area.
10. The father has contended, and primafacie justifiably,
that she did not take custody of the children before her
::: Downloaded on - 26/06/2024 07:32:33 :::
4
marriage whilst she wanted to be alone and away from her
children. It was during those times that the father cared for
the children and kept their custody. He contends that now
she has well settled. She has sought to take away the
children to be used as her investment as she has advanced
in age.
11. Various allegations are made by her in the Petition to
show how the father is unfit to have custody of the children.
This is despite the fact, that upon whatever was the
dispossession of the father, she had allowed him to have
custody of the children in the consent terms and obtained
the divorce and remarried thereafter.
12. She has produced xerox copies of certain documents
showing expenses incurred for the children. Most of the
documents are of the year 2008. It is seen that during the
summer vacation when she kept custody of the children she
incurred certain expenses. That is natural. She has
produced certain bills of certain stores showing purchase of
materials. These do not show who purchased the goods and
for whom. She claims that the father did not incur sufficient
medical expenses for medical treatment of the children,
which she has done. The father has produced copies of
::: Downloaded on - 26/06/2024 07:32:33 :::
5
medical prescriptions and bills showing what he has done for
the children. It is not understood how both the parties lay
so much emphasis upon medical treatment for the children
over other expenses.
13. No complaint was made about what the father failed and
neglected to do in the year 2006 or 2007. The first
complaint has been made in this Petition itself. The
allegations of the mother go thus far.
14. The Petition has come up before me on a number of
occasions since the reopening of the Court after summer
vacation. I have interviewed the children, and the parents
singly as well as jointly. I found that the children are highly
stressed, anxious and nervous. I have stated my
observations in earlier orders.
15. I deemed it fit that both the parties as well as the
children need counselling. I sent them to the child
Counsellor / child specialist from the Tata Institute of Social
Services (TISS) who serve at the Family Court, Mumbai
through the NGO, “MUSKAAN”. The child specialist/ senior
Counsellor Ms.Freny Italia and junior Counsellor Ms.
Swapna Redij, have counselled the children on atleast 3
::: Downloaded on - 26/06/2024 07:32:33 :::
6
occasions. The parents have also been interviewed by them.
The father was directed to obtain access to his children
pending this Petition whilst the children were allowed to be
with the mother, despite the breach of the consent terms
th
dated 20 February, 2006 to maintain the statusquo that
prevailed at the time of the Petition.
16. The option of sending the children to boarding school, in
which they would be away from the strained relationship of
both the parents, with their friends and where both parents
can have equal access to them, was considered. The option
has not materialised.
17. The Counsellor submitted an interim report, copies of
which were given to both the parties. Further counselling of
the children was done thereafter also. The mother has
allowed access as directed. The father has taken access in
the presence of the Counsellors. The Counsellors have
submitted a further report to Court today. The report inter
alia shows the following aspects:
i) Children had overcome their initial resistance to the
father and had began interacting with him and the
grandmother.
::: Downloaded on - 26/06/2024 07:32:33 :::
7
ii) Jehan cares for his father and his grandmother
though there is no overt display.
iii) He yearns for greater attention and display of
affection from his father, whom he feels loves his
brother more.
iv) The children are strained due to parental
differences.
v) The father is strict and disciplined them which
makes Jehan rebel.
vi) Sheroy can be easily influenced.
vii) He gets bullied at school.
viii) There is a strong bond between the brothers.
ix) The children seem to be heavily influenced by
the mother as was apparent in their talk and
tone, which was identical to what the mother
shared or expressed.
::: Downloaded on - 26/06/2024 07:32:33 :::
8
x) The father provided well for the children for their
education and basic needs.
xi) He needs counselling.
xii) There is no reason to doubt that he will not
continue to provide for his children in the future.
xiii) The mother was now in a position to take care
of her children and cites this as her earlier
reason for giving away custody of the children to
the father.
xiv) Both parents instigate the children.
xv) Jehan has taken the role of the mother's
confidante, which is unhealthy for his emotional
development.
18. Both the parents, the present husband of the mother as
well as the grandmother have attended my chamber on all
the dates of hearing. The children attended once before.
They have attended today.
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9
19. Jehan expressed his desire to speak to me. I have
allowed him to speak to me. He has parrotlike narrated the
facts and allegation urged by his mother, argued by his
Advocate and stated in this interim application.
20. It may be mentioned that when I interviewed the
children, I had not asked them directly when they would
want to live with. That would have been the most
inappropriate question. Children in the custody of one of the
parents, and more so when there is so much resistance and
acrimony between them, are essentially and considerably
tutored. That is the case in this Petition also. That has been
specifically noted by the Counsellors as shown in item No.ix
above.
21. Sheroy also spoke to me. He was more brief. He stated
what he would want. In short, without being questioned,
and on their own desire the children stated that they wanted
to be with the mother.
22. This is hardly a sagacious, informed choice. It is more
apparent in view of the fact that Jehan spoke at length and
exactly as his mother had stated earlier as has been noticed
::: Downloaded on - 26/06/2024 07:32:33 :::
10
by the Counsellors also. It would be most inappropriate and
improper to consider that as the choice of the children. The
Court has to determine the interest and welfare of the
children. The Court may interview the children. The
interviewing must be in keeping with the circumstances.
The Court must try to ascertain upon asking questions and
obtaining answers, the true position of the children,
emotionally as well mentally and determine where their
interest and welfare is. It has been held in the case of
Thirty Hoshie Dolikuka Vs. Hoshiam Shevaksha
Dolikuka, that :
“where the child is not in a position to express
any intelligent preference between his/her
parents, as in this case, mature thinking is
necessary to decide as to what will enure to
his/her benefit and welfare. In such a situation
therefore, it is not necessary to send for the
minor and interview her to ascertain her wishes
before proceeding to decide the question of her
custody. Personal interview of the child is also
to be avoided when she is torn between the
affection for both parents and such interviewing
would further cause depression and
::: Downloaded on - 26/06/2024 07:32:33 :::
11
demoralisation in her mind.”
23. Giving the custody of the children to the parent who has
kept custody upon hearing a parrotlike statement cannot
determine the child's welfare. I do not mean to suggest that
the welfare of the children would not be heeded by the
mother in this case. She has married a very reasonable
person. He has attended Court on every date of hearing. I
have spoken to him also along with the mother. It is to his
credit that the father has not made allegations of what the
mother or her husband did not do.
24. However, what is important in this case is that the
children have been well cared for by the father for 4 years
whilst the mother essentially abandoned them. Whatever be
her justification, the fact remained that the father was the
single parent for a number of years. There was no complaint
and no application. The situation of change of heart,
therefore, cannot show the demerits of the father's
upbringing.
25. The fact remains that the mother is in breach of the
th
Court's order as reflected in the consent terms dated 20
February, 2006. The father has complained of the breach
::: Downloaded on - 26/06/2024 07:32:33 :::
12
th
from 10 June when he was denied custody. The children
have been brainwashed by the mother during this period.
The children deserve the love and affection of both the
parents. They must in turn love both the parents. Any
upbringing which runs counter to these basic principles is
itself against the interest and welfare of the child and must
be eschewed.
26. In this case the further fact is the breach of the order
already passed and coupled with the mother's initial
abandonment.
27. Since all the allegations made against the father are not
substantiated at all, the case for modification rests only
upon the change of mind and the change of heart of the
mother. In that case the mode exercised by her is seen to be
completely incorrect. The children must be given a chance
and an opportunity to be with the father to obtain the best
out of him. The children must continue with their access to
the mother as before to obtain the best out of her.
28. Both the parents have been seen to be instigating the
children as is reflected in Clause XIV of the Counsellor's
report extracted above. In fact the father is advised further
::: Downloaded on - 26/06/2024 07:32:33 :::
13
Counselling as is reflected in Clause XI extracted above.
This would be more so as the children consider him
extremely strict, a fact easily observed by this Court also.
Similarly because both the parents are seen to be instigating
the children, a fact noted by this Court also, they would need
a further counselling to win over the children, specially
Jehan, who believes his father does not love him as much as
his brother. However, there is no one else the children can
go to. None is seen to be particularly better than the other.
29. Despite my entreaties and observations, I have not
found any improvement in the upbringing of the mother as is
reflected in the Counsellors' last report shown to me today,
which shows how the children have been
“heavily
by the mother as reflected in clause IX of the
influenced”
report extracted above.
30. This is not the case in which the Petition can be
disposed of by way of a final order. In Custody matters
modification of the order is the rule rather than the
exception. However, modification must be in accordance with
law and upon obeying of the law. Breach of orders cannot be
lightly allowed in the name of modification except if gross
acts of neglect or demerits of a parent having custody are
::: Downloaded on - 26/06/2024 07:32:33 :::
14
shown. Hence, the following order:
ORDER
1.The custody of the children is restored to the father.
2.The children Jehan and Sheroy are directed to go
with their father to his home.
3.Both the children as well as the father shall
continue to be counselled by the same Counsellors.
They shall go for counselling Sessions on Tuesdays,
Thursdays and Saturdays as before. This shall
continue for a period of 1 month.
4.The father shall pay the Counsellors' fees for each
counselling session as determined by the
Counsellors.
5.The other terms between the parties remain
unchanged. The children, however, will be entitled
to talk with the Mother on telephone whenever they
desire.
6.The Counsellor shall submit further report to the
::: Downloaded on - 26/06/2024 07:32:33 :::
15
Court at the end of one month from today. Since
the children feel that the father is very strict and has
on occasions beaten them, the father is specially
adivsed to be milder with the children:
7.The further future custody shall be determined
based upon the Counsellors' further report.
8.The children have been explained this order by the
Court.
(SMT. ROSHAN DALVI, J.)
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