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2017 DIGILAW 1051 (JK)

Sheikh Saba Zaffar v. Mohsin Ul Showkat Qadiri

2017-12-07

M.K.HANJURA

body2017
JUDGMENT : M.K. Hanjura, J. Aggrieved by the order impugned dated 01.09.2017 of the learned 1st Additional District Judge, Srinagar, passed under Section 47 of Guardian and Wards Act, in File No. 71/Misc. titled Mohsin ul Showkat Qadiri vs. Saba Sheikh, the appellant has filed this appeal seeking the indulgence of this Court in quashing the same on the grounds urged in the appeal. 2. The factual background of the appeal of the appellant is that the respondent filed a petition under the Guardian and Wards Act, before the court of learned Principal District and Sessions Judge Srinagar, which was subsequently withdrawn on the basis of an extra judicial settlement that culminated into an agreement recorded in the year 2014. Thereafter, the respondent filed another petition in terms of Section 25 of the Guardian and Wards Act, seeking custody of the minor child, Mohd. Yashim Qadri, born from the thighs of the respondent which was decided on 22.03.2016 by the learned Additional District Judge, Srinagar on the consensus of the parties as a corollary to which the visiting rights of the respondent vis-a-vis the minor came to be settled. The respondent filed an application seeking review of the order dated 22.03.2016 of the learned Additional District and Sessions Judge, Srinagar, on the ground that since the minor has completed seven years of age and the right of Hizanat (custody) that the appellant had qua the child is over, as such, he is entitled to the custody of the child. The respondent filed his objections to the said application. It is stated that the learned Additional District Judge, Srinagar without hearing the appellant determined the issue, considered the application and passed the order dated 01.09.2017 impugned in the appeal. 3. In the above backdrop, it will be expedient to reproduce the relevant extracts of the order dated 01.09.2017 of the learned Additional Sessions Judge Srinagar, that have a direct bearing on the entire gamut of the controversy raised here in this petition. “It is well settled law that the father or the mother cannot be deprived of visitation rights of their ward. The ward in fact is entitled to receive love and affection from both the parents which is always for the welfare of the child. “It is well settled law that the father or the mother cannot be deprived of visitation rights of their ward. The ward in fact is entitled to receive love and affection from both the parents which is always for the welfare of the child. In fact the petitioner has not mentioned in the petition as to what sort of modification or review he is seeking in the earlier order and if we go through one of the paras of the petition wherein he has stated that he child has completed the age of 7 years i.e. age of Hizanat. It would appear that the petitioner is interested in seeking the custody of the minor ward, however, for seeking the same the petitioner has to apply under the provisions of Guardian and Wards Act. So far the visitation rights of the petitioner with the minor ward are concerned, the petitioner cannot be deprived of the same. It would further appear from the perusal of the interim orders passed by this court in the application seeking implementation of the order that the conduct of the respondent has not remained satisfactory and all the times the petitioner was compelled to seek either the assistance of the police or the directions upon the Ld. Counsel to get the child for having interaction with the petitioner. This court had an opportunity to see the behavior of the child when he was brought for having interaction with the petitioner and the ward in the open court without any hesitation had gone with the father outside the court for some hours and was returned back by the petitioner and the child appear to be very comfortable with his father. The parties may have ego problems with each other, but the said ego should not be the reason for depriving the father from having meetings and interaction with his ward. The child/ward has also right to receive the love and affection from their parents which is necessary for his welfare and he or she should know his parents in a better way. The child/ward has also right to receive the love and affection from their parents which is necessary for his welfare and he or she should know his parents in a better way. The earlier order in which the petitioner is seeking review/modification by which the petitioner was given visitation rights for two days on 2nd and 4th Saturday of each month from 1 P.M. to 4.30 P.M., the same order needs to be modified for the reasons that the child is undisputedly reading in some school and if the order remains as it is, the child will definitely miss his classes for two days and further the child appears to be comfortable with his father, therefore, the order dated 22.03.2016 is modified to the extent that petitioner shall have interaction with the minor ward on every 2nd and 4th Saturday and shall pickup the ward from the school after school hours on the said days and shall keep the custody of the ward till Sunday evening and shall handover the custody of the child at 5 PM on Sunday at the place which shall be fixed by the parties. Further during winter vacations the applicant/father will keep the custody of the minor for two days on each Friday and Saturday and shall handover the custody of the minor to the respondent/mother on Sunday evening at 5 PM at the place where the parties may agree. The application is accordingly disposed of along with other ancillary applications, same be consigned to records after due completion.” 4. The order of learned Additional District Judge, Srinagar, cited above gives the respondent the visitation rights only, of which he cannot be deprived under law. The Trial Judge is the best person to judge and understand the pros and cons of a matter in the right perspective, in as much as he judges the conduct of the parties who appear before him very frequently during the course of the trial of a petition. The trial court has cast a shadow on the conduct of the appellant by stating that the same has not remained satisfactory and she has many a times dragged the respondent to either seek the assistance of the police or the directions upon the learned counsel for interacting with the child. The trial court has cast a shadow on the conduct of the appellant by stating that the same has not remained satisfactory and she has many a times dragged the respondent to either seek the assistance of the police or the directions upon the learned counsel for interacting with the child. The trial Judge has also stated that he had an opportunity to watch and assess the behavior of the child who appeared to be very comfortable with his father. The Trial court has stated that the parties may live in ego but the same should not form the base line of depriving the father of the right to meet and interact with the child. Being the child of the appellant and the respondent, both of them have to bestow their love and affection unto him which is necessary for his welfare so that he knows his parents in a better way. 5. The Trial court has concluded that the respondent-father of the child was given visitation rights for two days i.e. on 2nd and 4th Saturday of each month from 1 PM to 4 PM which requires to be modified for the reason that the child is a school going one and if the order remains in force that will adversely affect the studies of the child and also that the child appears to be comfortable with his father, therefore, the order dated 22.03.2016 is modified to the extent that the petitioner shall have interaction with the minor ward on every 2nd and 4th Saturday and he shall pick up the ward from the school after school hours on the said days; where after he shall handover the custody of the child to the appellant at 5 PM on the following day, i.e., Sunday, at the place to be fixed by the parties. It has been directed further that during winter vacations the applicant/father will retain the custody of the child for two days on each Friday and Saturday and shall handover the custody of the child to the respondent/mother on Sunday evening at 5 PM at the place that the parties may agree. 6. The question that arises for determination is whether the order of the learned trial court is just and reasonable and whether, or not, it will sustain in the eyes of law. 6. The question that arises for determination is whether the order of the learned trial court is just and reasonable and whether, or not, it will sustain in the eyes of law. The answer to this question is provided by the Apex Court of the Country in the case of “Ashish Ranjan vs. Dr. Anupama Tandon and Anr.”, reported in 2010 (14) SCC 274 , Paragraph Nos. 21 and 22 of which assume significance and are reproduced herein below verbatim:- “21. If the instant case is considered in totality taking into consideration the above referred judgments, we are of the view that in the facts and circumstances of the case, inference can be drawn that the rights of visitation given to the applicant by this court vide order dated 03.05.2008 stood completely frustrated and the respondents have ensured that the applicant may not reach his son and all attempts made by the applicant in this regard stood futile. The mind of the child has been influenced to such an extent that he has no affection/respect for the applicant. In such a fact-situation, we do not hesitate in holding that the respondents have deliberately and willingly violated the terms of the consent order and are guilty of committing the contempt of this court. However, imposing any punishment on the respondents would not serve any purpose, nor it would serve in a better way to the welfare of the child, Kislay. The respondent No. 1 is serving at Saifai, Distt. Etawah (U.P.) at a distance of about 500 Kms. From Ajmer and is certainly not in a position to take care of the child Kislay. The respondent No. 2 is quite aged lady who herself has been suffering from various ailments. Therefore, interest/welfare of the child, Kislay is not being taken care of at all. A child of this age may not be able to learn family values, the importance of bonding or have interpersonal relationships, etc. if he gets inadequate opportunities for social inaction. It is necessary for a child that he should be in regular contact of the non-custodial parent also. 22. Be that as it may, undoubtedly, the order dated 03.05.2008, so far as the custody of the child, Kislay, is concerned, has proved unworkable as the respondents succeeded in frustrating the same totally. if he gets inadequate opportunities for social inaction. It is necessary for a child that he should be in regular contact of the non-custodial parent also. 22. Be that as it may, undoubtedly, the order dated 03.05.2008, so far as the custody of the child, Kislay, is concerned, has proved unworkable as the respondents succeeded in frustrating the same totally. The child has been tutored by the respondents to the external that he has no inclination towards the applicant father. The respondents have ensured that all efforts of the applicant or his parents to meet the child turned futile. The child, Kislay, has been instructed not to pick up the phone, so that even by chance he may not hear the voice of the applicant or his parents. In such a charged/hostile atmosphere, it is beyond one's imagination that the other terms/conditions incorporated in the order dated 03.05.2008, that the applicant may take out the child to another city; or stay with the child for few nights in the same city, would be complied with. More so, further, clause No. (XV) of the order, that the applicant or his parents would be at liberty to talk to the child on telephone has never been observed as all attempts made by the applicant in this regard have failed. The child, Kislay, has been tutored by the respondents and he has adopted an hostile attitude towards the applicant. In such a fact-situation, where circumstances have substantially changed subsequent to the order dated 03.05.2008, due to non-compliance of the terms of compromise order, the applicant is fully justified seeking review/modification of the said order. 7. The issue raised herein being a pure question of fact requires to be examined by an appropriate forum taking into consideration all the factual and legal aspects. Before adverting to the law on the subject laid down above, the appellant has contended that the order dated 01.09.2017 passed in the application seeking review of the earlier order dated 22.03.2016 of the trial court was passed behind her back and she was not given an opportunity of being heard, as a consequence of which, she has been condemned unheard. The order dated 21.09.2017 passed in the application seeking table amendment of the order dated 01.09.2017, knocks the bottom out of the contention of the appellant that she was not given an opportunity of being heard as the learned trial court has stated in the said order that Mr. Owais Pandit, appeared on behalf of respondent. He filed objections. Arguments were heard on 27.08.2017 and on the same date the matter was put up on 01.09.2017 for orders. The order was announced in the open court in presence of the learned counsel for the parties and on perusal of the order dated 21.09.2017, it appears that the name of learned counsel for the respondent has been wrongly omitted which has crept in the order due to a typographical mistake. The Trial Court allowed the amendment sought and directed that the nemo for the respondent shall be substituted and read as “the learned counsel for the respondent present” in the order dated 01.09.2017. The orders passed by the court have the presumption of correctness attached to them and, therefore, the contention of the appellant that she was not given an opportunity of being heard is rejected out rightly. 8. Now looking at the order dated 01.09.2017 from the perspective of the law governing the field, the learned Trial Court has justified the order by reasons. He has stated that in case the custody of the ward would have been handed over to his father i.e. respondent in this petition on 2nd and 4th of Saturday of each month from 1 PM to 4 PM that would have adversely affected his studies as he is a school going child and the order would have eventually kept him away from the classes for two days. Not only this, the learned Trial Court has stated that the child appears to be comfortable with his father. So according to the Trial Court the earlier arrangement which was in place had become unworkable in view of the aforesaid reasoning. The learned Trial Court also noticed the change in the circumstances of the case i.e., the conduct of the appellant in frustrating the design of the respondent by scuttling the visitation rights granted to him every now and then which constrained him to either seek the assistance of the police authorities or the Court in the implementation of the earlier order of the Court. The appellant a deviant litigant has ingeniously knocked at the doors of the court. The paramount consideration with which the Courts have to be guided is the welfare of the child. The Court found it appropriate that the custody of the child should remain in the hands of the appellant but at the same time the court in order to see that the child is not deprived of the bliss of love, care and affection gave the respondent the visitation rights/ temporary custody of the child only, the aim and object being that the child is put in such a situation where he understands his parents and stays in touch with his non-custodial parent, i.e., the respondents also. 9. Viewed in the context of all that has been said and done above, the appeal of the appellant appears to be devoid of any merit and is accordingly dismissed as a consequence of which the order dated 01.09.2017 of the learned 1st Additional District Judge, Srinagar is upheld. The record of the case shall be remitted to the trial court along with a copy of this order. 10. Dismissed as above along with connected MP(s).