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2013 DIGILAW 638 (JHR)

Somnath Das v. Sheoli Hati

2013-05-17

P.P.BHATT

body2013
Judgment Petitioner by way of filing the present petition under Article 227 of the Constitution of India has prayed for issuance of appropriate writ/order for setting aside the order dated 08.06.2012 (Annexure-8) passed by the learned Principal Judge, Family Court, at Jamshedpur in G.S. Case No.11 of 2012, whereby the learned court below has rejected the interlocutory application dated 28.10.2011 filed on behalf of the petitioner. 2. Heard the learned counsel for the petitioner as well as respondent. Perused the impugned order as well as other material placed on record. 3. On perusal of paragraph No.5 of the impugned order, it transpires that the court below has rejected the application moved by the petitioner for visitation mainly by assigning a reason that in view of the amicable settlement was arrived at between the parties, no new condition can be imposed upon the parties. Moreover the respondent is ready and willing to honour the terms and conditions of the said settlement and, therefore, there is no need to make any modification in visitation right. 4. Learned counsel for the petitioner by referring paragraph 4 of the petition submitted that with regard to custody of child the parties are agreed to allow the petitioner to meet the child in every two months starting from January 2010, in between 10.30 to 12.30 A.M. Learned counsel for the petitioner by referring Annexure-2 i.e. report submitted by the Conciliator, JHALSA that the petitioner-husband has been instructed to withdraw the application filed for the custody of the minor daughter being G. & WC Case No.290 of 2009 pending before the Ist Additional Judge, Family Court, Bangluru since the same was filed during the conciliation proceeding. However, parties were given liberty to file an appropriate application for the same, before the competent court after conclusion of the conciliation proceeding. Thereafter, the petitioner has approached the court below by way of making an application dated 28.10.2011, but the court below has failed to appreciate the grounds which were canvassed by the petitioner before the court below, including the facts that the petitioner was given liberty by the Conciliator upon the agreement arrived at between the parties. 5. Thereafter, the petitioner has approached the court below by way of making an application dated 28.10.2011, but the court below has failed to appreciate the grounds which were canvassed by the petitioner before the court below, including the facts that the petitioner was given liberty by the Conciliator upon the agreement arrived at between the parties. 5. Learned counsel for the respondent while supporting the order passed by the court below strongly opposed and submitted that the petitioner under the one or another pretext made an attempt to prolonged the proceedings of G.S Case No.11 of 2012 which is pending before the court. The learned counsel for the respondent by referring the order passed by the Hon'ble Apex Court pointed out that the parties to the proceedings have been directed to extend co-operation for expeditious disposal of the suit and the court below is also directed to conclude the trial within a period of nine months from the date of finalization of issues in the matter. 6. In response to this submission, the learned counsel for the petitioner submitted that the written statement was not filed by the respondent at an early stage and therefore, issues were framed in the month of September, 2012 and therefore, according to him the petitioner has not deliberately caused any delay in expeditious disposal of the suit. It is also submitted that on account of certain genuine reasons such as illness of mother, the petitioner has asked for adjournment, but the court below did not granted time in view of observations and direction issued by the Hon'ble Apex Court. 7. The learned counsel for the respondent submitted that respondent has co-operated in the proceedings and it is not factually correct that the court below declined to grant adjournment to the petitioner though there were valid reasons for seeking adjournment. The learned counsel for respondent strongly opposed the submission made by the learned counsel for the petitioner in this regard. 8. In view of the facts and circumstances narrated herein above and more particularly, in view of the order passed by the Hon'ble Apex Court, the court below is required to conclude the trial within a period of nine months after the settlement of issues. 8. In view of the facts and circumstances narrated herein above and more particularly, in view of the order passed by the Hon'ble Apex Court, the court below is required to conclude the trial within a period of nine months after the settlement of issues. However, at the same point of time, in view of the agreement arrived at between the parties before the Conciliator when specific liberty has been given to the petitioner for preferring such application, the court below is required to deal with and decide such application in accordance with law. It appears that the court below is under the impression that the settlement is arrived at between the parties, before the Conciliator of Jharkhand-State Legal Services Authority till the outcome of the case and therefore, no further order is required to be passed, but it appears that arrangement was worked out till the petitioner prefers such application. Therefore, application for visitation right filed by the petitioner is required to be dealt with and decide by the court in accordance with law after affording an opportunity to the parties of being heard. 9. Accordingly, the writ petition is allowed and order dated 08.06.2012 passed by the learned Principal Judge, Family Court at Jamshedpur in G.S Case No.11 of 2012 is ordered to be set aside. The court below shall decide the application for visitation right afresh after affording an opportunity of being heard to the parties. 10. The court below is at liberty to explore possibility of conciliation and amicable settlement, if any, between the parties for visitation right. Petition allowed.