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2019 DIGILAW 1271 (RAJ)

Siddarthpal Tanwar v. Meenakshi Tanwar

2019-04-29

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

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JUDGMENT : Narendra Singh Dhaddha, J. 1. Petitioner has filed a complaint petition against respondent for not complying with the order dated 18.5.2018 passed in D.B. Civil Miscellaneous Appeal No. 166/2018, Siddarthpal Tanwar v. Smt. Meenakshi Tanwar. Respondent also filed Civil Misc. Application No. 145/2018 in the said appeal. The order dated 18.5.2018 reads as under: "1. None appears for the respondent in spite of service being effected and the matter being passed over once. 2. The appeal has been preferred against the impugned order dated 13.11.2017 alleging the same of being passed in total violation of law. 3. The application filed by the appellant under Section 26 of the Hindu Marriage Act for custody of the minor son Hridyapal born to the couple on 01.09.2005 has been dismissed by the learned Judge without recording any evidence. 4. The impugned order does not discuss even the pleadings of the parties and also does not bring out as to what would be in the best interest of the child i.e. whether the child should be in the custody of the mother or the father. Who is able to provide better upbringing to the child has not been discussed. 5. We allow the appeal and set aside the impugned order dated 13.11.2017. 6. We restore appellant's application under Section 26 of the Hindu Marriage Act. 7. We grant appellant visitation rights till appellant's application is decided to meet the son. On every first and third Saturday of each month the respondent shall produce the child in the Family Court at 10:00 a.m. in the morning. The appellant would be entitled to interim custody of the child and he would return the custody of the child by 4:00 p.m. before the Family Court. 8. The appellant's application under Section 26 shall be decided as per law within six months from today." 2. Counsel for the petitioner submits that despite order of the Hon'ble High Court, the respondent/contemnor did not comply with the order dated 18.5.2018. Learned counsel submits that the High Court has given visiting rights to the appellant on 1st and 3rd Saturday of each month the respondent shall produce the child in the Family Court at 10.00 a.m. in the morning. But, the respondent arbitrarily did not comply with the said order. It is clearly tantamount to contempt. So, the respondent be punished for contempt. 3. But, the respondent arbitrarily did not comply with the said order. It is clearly tantamount to contempt. So, the respondent be punished for contempt. 3. Learned counsel for the respondent submits that the order dated 18.5.2018 was passed in her absence. She could not appear in the court. Her son Hridyapal was presently studying in Class-VII in Modern Public School, Shivganj Sirohi, so it is great inconvenience for her to comply with the order dated 18.5.2018. She cannot bring her child at Jaipur because the study of the child would hamper, so kindly modify the impugned order and she will comply with the order accordingly. 4. We have heard the learned counsel for both the parties and perused the record. 5. It is great inconvenience for respondent to bring her child at Jaipur because Shivganj is 425 kms away from Jaipur and it will also hamper the studies of child Hridyapal if he comes to Jaipur twice a month. Therefore, we modify the order dated 18.5.2018 in the terms that the appellant would be at liberty to meet his son Hridyapal, aged about 13 years, who is presently studying in Class-VII at Modern Public School, Shivganj Sirohi. The Principal of the school and Warden of the hostel are directed to keep the child present to meet him on every 2nd and 4th Sunday of the month for one hour between 11.00 a.m. to 2.00 p.m. 6. With the above modification, the contempt petition and application No. 145/2018 stand disposed of.