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2011 DIGILAW 675 (JK)

Abid Rasool Bhat v. Yasmeen Rasool (Mrs. )

2011-12-03

MOHAMMAD YAQOOB MIR

body2011
1. By medium of this civil revision petition orders dated 9.9.2011, 29.9.2011, 24.10.2011 and 4.11.2011,passed by the Court of District Judge, Srinagar in proceedings under Section 25 read with Section 12 of Guardians & Wards Act (hereinafter referred to as "the Act"), are assailed. 2. Parties are married to each other, from the wedlock three children, namely, Areeba Abid (daughter aged 9 years 3 months), Areesha Abid (daughter aged 7 years) and Ibrahim Abid Bhat (son aged 4-1/2 years) were born. The marriage is subsisting but due to unfortunate disturbances in marital relationship the parties are living separately and the children (wards) were living with the respondent. 3. Allegedly when the minor children were returning from their school, the petitioner allegedly has taken them into his custody forcing the respondent to launch proceedings under Section 25 of "the Act". Alongside an application has been filed under Section 12 of the Act for interim custody. 4. During the pendency on 9.9.2011 arguments vis-a-vis application for interim custody were heard and the petitioner (non applicant) had been directed to produce the minors on 29.9.2011. On 29.9.2011 due to paucity of time, the matter was re-scheduled for 24.10.2011. On the said date minors were not produced, Court directed issuance of warrant. On 02.11.2011 petitioner (non-applicant therein) opted to remain absent. On 04.11.2011 application under Section 12 of "the Act" was disposed of. Trial Court noticed all the features of the case which include the indifferent attitude of the petitioner in not producing the minor children, then the position of the children, and having been admitted in JP Academy, Meerut. 5. The respondent(mother) seems to have gone in search of her children to the said Academy. The Principal of the Academy intimated the petitioner that there appears to be strained relationship between the couple, the respondent (wife) is coming to the school accompanying many people, it creates disturbance for other children, so has been informed to take back the children. The Principal of the said Academy also seem to have informed that at the end of the academic session father of the wards (petitioner) took the children on 20th of March, 2011 and did not return back. In the process what the petitioner has been doing is that he tried to keep the children totally out of reach of the respondent (mother). 6. In the process what the petitioner has been doing is that he tried to keep the children totally out of reach of the respondent (mother). 6. The Court below recording prima facie satisfaction about the welfare of the minor children opined that the children require a stable and regular home with security so as to shape in right direction. The respondent (petitioner herein) has defied the court orders and has created an atmosphere rendering the welfare of the minor children in jeopardy and then has opined that in the interests and welfare of the minors, temporary custody has to be handed over to the mother (respondent herein), further has observed that since the respondent (petitioner herein) is absconding along with minor children, therefore, only course left open to the Court is to procure attendance of the minor children by issuing a non-bailable warrant of arrest to be executed by IG, Kashmir. This warrant till date appears not to have been executed because of indifferent attitude of the petitioner. 7. Aggrieved by the orders passed from time to time relatable to the interim custody of the children, instant revision petition has been filed. 8. The first question for consideration is as to whether revision is maintainable in view of the amendment to Section 115 of the Code of Civil Procedure. In terms of amendment, proviso to Section 115 has been substituted by the following proviso: "Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings." 9. The guiding principle in-keeping with the legislative intent in substituting the proviso is that the revision can only be maintained at the behest of the party applying for the revision when the order impugned if would have been passed in favour of the said party would have the effect of terminating the suit or the proceedings finally, only in that eventuality revision can be maintained, not otherwise. 10. 10. In the instant case proceedings under Section 25 of "the Act" are pending and it is during the pendency of the said proceedings, application for interim custody, in terms of Section 12 of "the Act", has been filed and considered. The orders passed in the application, if would have been in favour of the petitioner, would not in any manner finally dispose of the proceedings under Section 25 of "the Act". When it is so revision cannot lie as the same is hit by the said proviso. Trial court has simply, on prima facie strength, concluded that by way of interim