Ascertainment of the wishes of the children is a relevant consideration in determining custody but not a compulsive requirement for granting visitation rights.

( 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 Guardain 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 AIR 1992 SC 1447=ll (1993) DMC I (SC) titled Kirtikumar Maheshankar Joshi v. Prad- ipkumar 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 Anotlier v. Vipin Menon (Capt.)And Another. 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