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2021 DIGILAW 125 (UTT)

VIMLESH v. MUKESH KUMAR

2021-02-26

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

body2021
JUDGMENT (Per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan) Learned counsel for the appellant has challenged the legality of the ex-parte order dated 14.08.2013, passed by the learned Family Court, Dehradun, whereby the learned Family Court had given the custody of both the children, namely Aditya Kumar and Kamal Kumar to the respondent-husband. 2. Briefly the facts of the cases are that the appellant, Smt. Vimlesh, and the respondent, Mr. Mukesh Kumar, were married on 15.02.2002 in accordance with the Hindu customs and rites. During the married life, Aditya Kumar was born on 01.11.2002, and Kamal Kumar was born on 16.06.2007. However, as differences arose between the couple, the couple parted their ways. While Aditya Kumar continued to live with his father, the respondent, Kamal Kumar was kept by the appellant-wife. Subsequently, in order to have the custody of the younger son, Kamal Kumar, the respondent-husband filed a case under Section 26 of the Hindu Marriage Act, 1955. By ex-parte order dated 14.08.2013, the learned Family Court granted the custody of both the children to the respondent-husband. Hence, this appeal before this Court. 3. The learned counsel for the respondent further informs this Court that despite best efforts of the respondent to have the judgment and decree executed, Kamal Kumar continues to be in the custody of the appellant, while Mr. Aditya Kumar continues to live with the respondent. 4. Both the learned counsels are ad idem that there are other legal disputes, which are pending in different Courts, both in the State of Uttarakhand and in the State of Uttar Pradesh. Both the learned counsels are equally ad idem that the appellant has submitted her affidavit, which shall be taken on record, wherein she gave undertaking before this Court that she is willing to withdraw all the cases filed by her against the respondent, both in the State of Uttarakhand and in the State of Uttar Pradesh provided that the custody of Kamal Kumar continues with her. The learned counsel for the respondent further states that his party, Mukesh Kumar has no objection, if the custody of Kamal Kumar continues with the appellant provided she is willing to withdraw all the litigations, pending in both the States mentioned hereinabove. 5. The learned counsel for the respondent further states that his party, Mukesh Kumar has no objection, if the custody of Kamal Kumar continues with the appellant provided she is willing to withdraw all the litigations, pending in both the States mentioned hereinabove. 5. Meanwhile, the learned counsel for the appellant further informs this Court that despite the fact that the appellant and the children have not been paid the maintenance by the respondent since January, 2020, in order to avoid further disharmony between the parties, the appellant is willing to forgo her claim over the arrears of maintenance. Moreover, she is not desirous of seeking any maintenance from the respondent even in future. 6. A bare perusal of the affidavit filed by the appellant clearly reveals that the appellant is willing to withdraw “all the litigations pending against the respondents, in place of, with undertaking that the custody of the child Arjun Rana @ Kamal Kumar will be keep with the appellant". 7. Keeping in mind the undertaking given by the appellant, the judgment and decree dated 14.08.2013 is modified to the limited extend that the custody of Arjun Rana @ Kamal Kumar shall continue with the appellant while the custody of Aditya Kumar shall continue with the respondent. 8. Registry is directed to modify the decree accordingly. 9. The appeal stands disposed of.