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2021 DIGILAW 521 (JK)

Mudassir Majeed v. Irtifa Ayoub

2021-10-01

JAVED IQBAL WANI

body2021
JUDGMENT : 1. The order dated 05.02.2021 (for brevity 'impugned order') passed by the Court of Additional District Judge (Matrimonial Cases), Jammu (for brevity 'trial court') in File No. 48/Misc. titled Iftifa Ayoub vs. Mudassir Majeed, is being questioned by the petitioner herein while invoking supervisory jurisdiction of this Court. 2. A petition is stated to have been filed under Section 25 of the Guardians and Wards Act, 1890 (for brevity the 'the Act') by the applicant/respondent herein before the trial court for custody of minor children, namely, Mohd. Ismaeel and Ahmad Abdullah on 07.11.2020. Hearing in the said petition is stated to have got deferred on imposition of lockdown due to outbreak of COVID-19 pandemic. An application under Section 12 of the Act is also stated to have been filed by the respondent herein along with the aforesaid petition for interim custody of minor children. The petitioner is stated to have appeared through his counsel through virtual mode on account of COVID-19, in the matter before the trial court and the trial court is stated to have allowed visitation rights in favour of the applicant/respondent herein with the minor children through video call/mode twice a week. The said petition is stated to have come up for consideration on 09.11.2020, 10.11.2020, 25.01.2021 and 22.02.2021. 3. On 05.02.2021, the counsel for the petitioner, is stated to have received a call from the trial court for appearance, in view of filing of an application by the respondent herein. The application is stated to have been filed by the respondent herein for allowing physical visitation. The counsel for the petitioner herein is stated to have requested the trial court for providing a copy of the application and an opportunity to respond to the same, by filing of objections. The impugned order, however, is stated to have been passed by the trial court on the same day i.e., 05.02.2021. 4. The impugned order is being questioned fundamentally and primarily on the ground that the same has been passed against the basic principles of 'Audi Alteram Partem' besides being arbitrary and illegal, in that, a copy of the application had been provided to the petitioner on 05.02.2021 at 5:30 pm and no opportunity was granted for filing objections to the said application. 5. In the above background, here it will be expedient and advantageous to reproduce the relevant extracts of the impugned order:- “1. 5. In the above background, here it will be expedient and advantageous to reproduce the relevant extracts of the impugned order:- “1. Applicant alongwith counsel present. Counsel for the other side. Ms. Monika Kohli Advocate through virtual mode present. Today learned counsel for the applicant has moved yet another application in the application for interim custody for allowing physical visitation with the minors. It has been submitted by the learned counsel for the applicant that the two minor children of the applicant who are merely 5 and 3 years olds are in the custody of the non-applicant and through on 09.11.2020 it was directed by the Court that applicant can have visitation through Video call with the children twice a week and same is being effected but not completely in true letter and spirit as it ought to have been. The children being of very small age usually stay with the father and are not freely speaking to the mother and are under the influence of the father or other members of his family. Besides with she has submitted that the children do not respond properly to her questions or queries and are quite abusive and disrespectful to her which is not expected of the children of such age. It has been further prayed by the learned counsel that not allowing the applicant to meet her children individually without any influence is not merely injustice to her but even to the minor children who at this stage need care, guidance, love & affection and pampering of a mother of which they are being deprived of. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 4. Perusal of the file reveals that actually no vakalatnama has been filed by any counsel in the matter till date expect for appearance by one Mr. Nikhil Choudhary, Advocate the junior of Mr. Abhinav Sharma, Advocate, for respondent who too had sought time to file vakalatnama on behalf of respondent. It is pertinent to mention here that on 07.11.2020 copy of the petition was handed over to the counsel present in the Court. Thus the counsel for the applicant has argued that physical visitation of the mother with her children be provided. Moreover, the children won't be affected in any manner since the applicant is living in the same vicinity and there is only 5/10 minutes distance from the house of applicant and non-applicant. Thus the counsel for the applicant has argued that physical visitation of the mother with her children be provided. Moreover, the children won't be affected in any manner since the applicant is living in the same vicinity and there is only 5/10 minutes distance from the house of applicant and non-applicant. The respondent is a Bank employee who leaves early to the office and comes late back in the evening and if he while going to office leave the children with the applicant so she can meet with them and develop bond with the children, pamper them and the non-applicant can take back the children in the evening, while as at the place of non-applicant, are his every old aged parents with whom the children are left for the whole day. 5. I have heard the applicant and her counsel at length and also considered the other material on record, no doubt the other side has not filed Power of Attorney till date, however, the prayer made by the other side cannot be ignored as such the applicant being mother of the minor children has every right to have visitation, love and pamper them and have the interim custody of her children. As such till the time the applicant, develops bond with her children initially twice a week on Saturday and Sunday from 2 P.M to 5.30 P.M. Besides that on Wednesday from 5 P.m to 7 P.m. Let it be made clear that the said arrangement is being made on temporary basis till the time of filing of objection and disposal of the application for interim custody of the children. 6. Let the application come up on 22.02.2021 for further orders. The applicant shall take the custody of the minor children from outside the house of the non-applicant and simultaneously non-applicant is reluctant in handing over the custody of the minor children to the applicant in that event applicant can seek the assistance of the concerned SHO for handing over the custody of the children to her for above said period. Similarly, the applicant shall return back the custody of the children to the non-applicant as per schedule stated above." 6. Similarly, the applicant shall return back the custody of the children to the non-applicant as per schedule stated above." 6. As emerges from the above, the impugned order permits the applicant/respondent herein to have physical visitation with her minor children, twice a week on Saturday and Sunday from 2 pm to 5.30 pm and on Wednesday from 5 pm to 7 pm. The impugned order admittedly, has been passed as a temporary measure and subject to the objections. 7. The question that arises for consideration of this Court in the facts and circumstance of the case would be as to whether the trial court was possessed of power to pass impugned order and whether in the process of passing of the impugned order it violated any of the rights of the petitioner including principles of natural justices. 8. Section 12 of the Act, provides for making of interlocutory orders in an application for appointment or declaration of a guardian. The power of the Court in the matter of protection of person and property of the minor indisputably embraces a wide field and the Court has jurisdiction to pass all such orders as it considers necessary and proper in the interest of minors. The passing of an order under Section 12 of the Act is discretionary. The trial court seemingly has been oblivious to the fact that the minor children have been living with the father petitioner herein and have had no physical interaction/visitation with the mother respondent herein. 9. Perusal of the record of the instant petition would demonstrate that an interaction on 10.02.2021 with the parties in presence of the children has been done resulting into filing of an agreement with regard to the agreed visitation rights of the mother-respondent herein with the minor children. 10. Record further tends to show that an endeavor had also been made by this Court for reconciliation between the parties in terms of order dated 17.07.2021, which however, had not materialized. The agreement supra arrived at between the parties in compliance to order dated 02.03.2021 agreed to the following arrangements:- “.............respondent is allowed for visitation of the minor children on weekly basis, Wednesday from 5 pm to 7 pm, Saturdays and Sundays from 2 pm to 5 pm. The agreement supra arrived at between the parties in compliance to order dated 02.03.2021 agreed to the following arrangements:- “.............respondent is allowed for visitation of the minor children on weekly basis, Wednesday from 5 pm to 7 pm, Saturdays and Sundays from 2 pm to 5 pm. Venue of visitation in the agreement is provided at JDA park near Jewal Chowk, Nanu Nani Park at Channi and Gandhi Nagar park at green belt.” 11. Record further tends to show that the said agreement was stated to be not workable by the respondent herein, and an application in this regard came to be filed by the respondent herein being CM No. 5915/2021, wherein the respondent herein detailed out various reasons and failures attributable to the petitioner herein for making the agreement unworkable. The factum of divorce stated to have been pronounced by the petitioner upon the respondent is also placed on record with the said application. 12. Be that as it may, undoubtedly the fact remains that the impugned order passed by the trial court is subject to objections and not a final order. The fact also remains that the petitioner herein in essence agreed to the visitation rights of the respondent herein with the minor children initially before the trial court, though through virtual mode and subsequently, upon execution of the mutual agreement physically as well. The mutual agreement entered into between the parties cannot operate as a bar to this court in determining the validity or otherwise of the impugned order. The execution of the mutual agreement in the facts and circumstances of the case can safely said to be an ancillary step in the process of proceedings of the instant petition, as such, same per se cannot said to be binding on either of the parties, if the same has become unworkable for any reason in the peculiar facts and circumstance of the case. 13. The trial court in the impugned order made it clear that the arrangement is temporary till the matter is considered on merits after filing of the objections by the non-applicant/petitioner herein. The impugned order in essence has been a repetition of the order passed on 09.11.2020, whereby visitation rights had been allowed to the mother-respondent herein with the minor children twice a week through virtual mode. 14. The impugned order in essence has been a repetition of the order passed on 09.11.2020, whereby visitation rights had been allowed to the mother-respondent herein with the minor children twice a week through virtual mode. 14. Record tends to show that the trial court while considering the application filed by the respondent herein, wherein the impugned order came to be passed by the trial court, found it appropriate to allow visitation rights to the respondent herein with her minor children through physical mode as a temporary measure, so that the children are not deprived of bless of love, care and affection of the respondent-mother. The impugned order seemingly is passed with the aim and object that the children are put in such a situation where they can understand their parents and stay in touch with them. 15. The supervisory jurisdiction invoked by the petitioner, in the peculiar facts and circumstances of the case, more particularly in view of the admitted position that the impugned order is temporary in nature and subject to objections, will not be warranted in view of the settled position of law laid down by the Apex Court in cases titled as Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil, reported in 2010 (8) SCC 329 and Radhey Shyam and Anr. vs. Chhabi Nath and Ors., reported in 2015 (5) SCC 423 . 16. Viewed in the context of all that has been observed, considered and analyzed hereinabove, the instant petition being devoid of any merit, entails dismissal and is, accordingly, dismissed, as a consequence whereof impugned order dated 05.02.2021, passed by the Court of Additional District Judge (Matrimonial Cases), Jammu is upheld. 17. Dismissed along with connected CM(s). It is made clear that nothing hereinabove shall be construed to be expression of any opinion about the merit of the case pending before the trial court.