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2018 DIGILAW 49 (JK)

Varun Arora v. Jyoti Arora

2018-02-02

TASHI RABSTAN

body2018
JUDGMENT : 1. Petitioner through the medium of instant petition, filed under and in terms of Section 104 of the Constitution of the Jammu and Kashmir, invokes jurisdiction of this Court for setting aside order dated 25.05.2015, passed by learned Additional District Judge (Matrimonial Cases), Jammu, (for brevity “Trial Court”) in case titled as Varun Arora v. Jyoti Arora (hereinafter for short as “impugned order”) by virtue of which, prayer of petitioner for interim custody of the child, namely, Jishan, on every Saturday and Sunday and other holidays and days of religious importance, has been declined. Petitioner’s next prayer is a direction in the name of respondent to handover interim custody of minor child on every Saturday and Sunday as well as on Holidays i.e. Baisakhi, Holi and Diwali etcetera. 2. Petitioner has preferred a petition under Section 25 of Guardian and Wards Act, for grant of custody of minor son, namely, Jishan, of the parties before learned Trial Court. Respondent has filed objections and resisted the petition. Learned Trial Court vide order dated 25.05.2015 has, while declining petitioner’s request for grant of interim custody of his minor son on every Saturday and Sunday and on holidays and special occasions such as Baisahki, Holi, Diwali etcetera, given him a right to have meeting and interaction with his minor child and to shower his love and affection on him and accordingly petitioner was granted visitation rights to have meeting and interaction with his minor child for three hours fortnightly on the first and third Sunday of every month in any place convenient to both parties till disposal of main petition under Section 25 of Guardian and Wards Act. It is this order, which is called-in-question in the present petition on the grounds set out in it. 3. Heard learned counsel for the parties and perused the record. 4. Petitioner is precisely aggrieved of order dated 25.05.2015 passed by learned Additional District Judge, Matrimonial Cases, Jammu, by virtue of which prayer for interim custody of minor child on every Saturday and Sunday and other holidays and days of religious importance, has been declined, on the ground that respondent has not proved to be a good mother and that grandparents of minor child have made number of investments for the care of the minor child and minor child was admitted in a good school. In support of his contention, petitioner has placed on record the transcript of conversation between petitioner and minor child, and also conversations between petitioner and respondent and some third person which have been reproduced in the main petition for grant of custody. 5. Respondent on the contrary has objected and resisted the claim of petitioner on technical grounds: that present petition is not maintainable as there is no legal infirmity in the order impugned; that petitioner and his family members were dowry hungry people; that she was thrown out of her matrimonial home on 01.12.2014; that minor child was illegally retained by petitioner and she was compelled to get the custody of minor son from petitioner and his family members through SHO concerned. 6. Qua the contention of respondent that petition is not maintainable as there is no legal infirmity in the order, the settled position of law is that petitioner is natural guardian of minor son and therefore, he has every right to interim custody of minor child, so that minor child is not alienated from his father. The minor child requires love, care and affection of both parents and for overall development and welfare of a child it is always necessary that though the spouses may be fighting and litigating against each other, but, nonetheless the child should not be used as a tool for satisfaction of their respective egos. The Courts are always concerned with the welfare of minor child and the technicalities have no role to play while adjudicating disputes relating to minor child and the sole concern of the Court is to see the welfare of minor child. This Court vide order dated 01.07.2015 directed that petitioner would have visitation rights to interact with his minor child on every Sunday by 9.00 AM with further direction to petitioner to deliver back the custody of minor to respondent by 7.00 PM and during the pendency of this petition, minor child had even met petitioner at Wave Malls. 7. The matters pertaining to custody of the minor welfare and interest of child are to be given a paramount importance. [Vide: Tatineni Mayuri v. Edara Baldev 2016 (13) SCC 377 ] 8. Respondent has never challenged the order impugned passed by learned Additional District Judge Matrimonial Cases, Jammu. 7. The matters pertaining to custody of the minor welfare and interest of child are to be given a paramount importance. [Vide: Tatineni Mayuri v. Edara Baldev 2016 (13) SCC 377 ] 8. Respondent has never challenged the order impugned passed by learned Additional District Judge Matrimonial Cases, Jammu. The visitation rights of three hours fortnightly granted by the Court below are on shorter side and it would be in the welfare of the minor child that he interacts with his father more frequently, so that he is not isolated and remain in regular contact with the father. The contention of petitioner that respondent has proved to be a bad mother cannot be considered at this stage and it would be in the fitness of things as well as for the welfare of minor child that the arrangement made by this Court on 01.07.2015 remains in operation till the matter is completely adjudicated upon by the Trial Court. The parties shall be at liberty to approach the Trial Court seeking any modification or alteration of the order in the event of change of circumstances. The Trial Court is directed to dispose of the matter as expeditiously as possible preferably within a period of three months. 9. Disposed of as above along with connected MP(s).