Child custody and visitation orders are inherently flexible and governed by the paramount consideration of the child's welfare. A party is estopped from enforcing a compromise decree where they have previously characterized it as unworkable and where enforcement would conflict with the child's expressed refusal.

JUDGMENT :

J. C. DOSHI, J.

[1] By way of this petition under Article 227 of the Constitution of India, the present petitioner has prayed for the following reliefs:-

“a. YOUR LORDSHIPS may be pleased to admit and allow this application;

b. YOUR LORDSHIPS may be pleased to quash and set aside the order dated 05-08-2022 passed by the Ld. Family Court No.3, Ahmedabad in Execution Application No.4 of 2022 and direct the Ld Family Court to implement and execute the order dtd. 12.1.2017 vide Civil Application No.67/2016;

c. YOUR LORDSHIPS may be pleased to grant any other and further relief as may be deem fit in the light of equity and justice.”

[2] The facts taken up from the pleadings in nutshell are that the parties to the proceedings had been legally wedded husband and wife. The marriage between the parties was solemnized on 21.11.2011 as per the Hindu Rites and Rituals. Out of the wedlock, daughter namely ‘J’ borne on 03.09.2012, (minor daughter is referred to as ‘J’ for hiding her identity) and then, differences and disputes arrived between the parties entailing to the separation of husband and wife whereby the wife went to her parental home along with minor ‘J’. There are several litigations took place between the parties and one of them is Civil Misc. Application No.67 of 2016 before the Family Court, Ahmedabad.

[2.1] This litigation between the husband and wife was initiated by the husband against the wife under Section 26 of the Hindu Minority & Guardianship Act and the Guardians and Wards Act, 1890 for the custody of the minor daughter ‘J’. The wife went to the parental home in June, 2012 for delivering her child but did not return to stay with the husband.

[2.2] In the custody matter, in Civil Misc. Application No.67 of 2016, a compromise arrived at between the parties and joint compromise pursis was placed before the Court vide Exhibit-17 to the proceedings and consequently, the Principal Judge, Family Court, Ahmedabad passed the judgment and decree dated 12.01.2017 in terms of compromise pursis filed by the parties. Some other litigation took place in interregnum between the parties whereby the present petitioner unsuccessfully filed the contempt proceedings as well as proceedings for the custody of the minor and ultimately, filed the Execution Petition No.4 of 2022 before the Family Court No.3, Ahmedabad for execution of the compromise decree arrived at between the parties. The Family Court, Ahmedabad by order dated 05.08.2022 pleased to dismiss the Darkhast by holding that the compromise decree arrived at between the parties is become unworkable due to subsequent development and since the petitioner remained unsuccessful in other proceedings, a compromise decree cannot be executed.

[2.3] By way of this petition, the order dated 05.08.2022 passed by the Family Court, Ahmedabad is called to the challenge.

[3] Learned Senior Counsel Mr. Yatin Oza assisted by learned advocate Ms. Srushti Thula appearing for the petitioner argued at length.

[3.1] The thrust of the argument that the learned Executing Court exceeded its jurisdiction and gone beyond the compromise decree arrived at between the parties by assigning the metaphysical thoughts instead of supplying cogent reasons. He would further submit that the Executing Court cannot go behind the decree but it needs to execute the decree as it stands. This is the settled principle of law but has been truly ignored by the learned Executing Court.

[3.2] Learned Senior Counsel also argued to the extent that, though the petitioner remained unsuccessful in getting the interim or permanent custody of the minor, he cannot be prevented from accessing the visitation right which he received in a compromise decree. Learned Senior Counsel further submits that the learned Trial Court confused between the right of permanent or interim custody and the visitation right of the petitioner, being a biological father of the minor ‘J’ to meet his daughter but by the impugned order, the learned Executing Court