Shradha Nath vs Manu Nath
2002 Latest Caselaw 273 Del

JUDGMENT

R.C. Jain, J.

1. This petition under Article 227 of the Constitution of India has been filed by the mother of the minor Medha Nath praying for quashing the order of learned Additional District Judge, Delhi (vacation Judge) dated 23rd June, 2000 which reads as under:-

PRESENT : Parties with their counsel.

"Considering the facts of the case and after hearing the parties, visitation rights granted in favor of the applicant are modified to the extent that the non-applicant/wife will bring the child every Saturdays in the concerned court at 3.00 P.M. and will hand over the custody of the child to the applicant/husband who will return custody of the child to the non-applicant at 5.00 P.M. In this period of meeting, the non-applicant/wife will not interfere in the meeting between the applicant and the child. This order shall continue unless modified by the Guardianship Court. The applicant allowed to meet the child today for one hour as child has been brought by the non-applicant. Next meeting of the child with the applicant will take place on 1-7-2000 in the concerned court.

List the matter on 3-7-2000 before the Guardianship Court, where the matter is stated to be pending disposal, subject to the orders of Senior Civil Judge, Delhi."

2. The petition was admitted by this Court on 13th July, 2000 and the operation of the above order was stayed until further orders and it was directed that the order dated 6.6.98 passed by the Guardian-Judge in regard to the visitation rights of the respondent-father shall continue. The case was thereafter adjourned from time to time as the Court wanted the parties to reach some amicable settlement and to that end also requested the counsel for the parties to use their good offices in that behalf. Unfortunately, no amicable settlement could be reached and solution which was acceptable to both sides could not be found.

3. The case has a chequered history, but for the purpose of answering this revision petition, I will refer only to the broad features. Medha is the only daughter of the parties born out of the wedlock and ever since the matrimonial discord between the parties, she is in the custody of her mother(petitioner). The father filed a petition under Section 25 of the Guardianship and Wards Act, 1890 (hereinafter referred to as the Act) seeking custody of Medha and also moved an application under Sections 12 and 14 of the Act, praying for interim custody. The said application was disposed of by the learned Guardian Judge vide an order dated 6.6.98 declining the prayer of interim custody to the father, but at the same time allowing visitation rights to the father. Relevant extract of the said order are as under :-

"It is however, apparent that the minor is missing her father and also is curious to know as to why she does not have paternal grand-parents. She is still at a very impressionable age and it is considered essential that for her proper development and growth, the petitioner has access to the minor. The petitioner is, thus, granted visitation rights to meet the minor at the residence of the minor on every alternate Sundays commencing w.e.f. 5.7.98 between 5 p.m. to 7 p.m. the prayer for the grant of custody of the minor for the summer vacations, at this stage, the minor has been living away from the petitioner for almost a year and is still suffering from prima facie, indoctrination against the petitioner and his paternal family members and thus, at this stage, it is not considered appropriate to grant exclusive custody of the minor to the petitioner during the summer vacations. However, the petitioner and his parents only are permitted to meet the minor on 14.6.98, 21.6.98 and 28.6.98 between 5 P.M. to 7 P.M. at the residence of the minor. The petitioner and the respondent are directed to ensure that the meetings of the petitioner and the petitioner's parents with the minor are held in a congenial atmospheres and likewise, subsequent meetings held between the petitioners and the minor w.e.f. 5.7.98 on alternate Sundays are also held in a congenial atmosphere."

4. The said orders/directions were earlier assailed by the father before this Court, but without any success. Around the ensuring summer vacation of the year 2000, the father moved an application before the Guardian-Judge seeking interim custody of minor Medha during summer vacations and the learned Guardian Judge disposed of the said application vide an order dated 3rd June, 2000 with the following observations/directions :-

"The application is, therefore, disposed of by granting visitation rights to the petitioner in addition to the visitation rights allowed on alternate Sundays. The petitioner be handed over the custody of the minor on every Tuesday and Fridays commencing from 6th June, 2000 from 5.30 P.M. at the residence of the respondent and the minor will be handed back to the respondent at 7.30 P.M. on each Tuesdays and Fridays. The petitioner would be allowed to take the minor outing in the City of Delhi during this period and would also be permitted to take the child to his parents' house to meet his parents and sisters and their families. The petitioner is further permitted to take the custody of the minor from the house of the respondent at 11.30 A.M. on each Sundays commencing from 4th June 2000 and he would hand over the custody of the minor at 6 P.M. to the respondent at the house of the respondent on such Sundays. During this period, the petitioner would be permitted to take the child around Delhi. The respondent may accompany the minor during all this period. The parties are directed to maintain a congenial atmosphere during all these visitations."

5. It appears that the said arrangement could not be worked out smoothly and there was some difficulty and on 6.6.2000 the learned Additional District Judge on the request of the mother appointed a local commissioner to ensure a meeting of the father and the daughter to be peaceful and there was no untoward incident. Even that arrangement was not free of problem so the father approached the Court with certain applications on which the impugned order dated 23rd June, 2000, came to be passed.

6. I have heard Mr. K.K. Sharma, counsel for the petitioner and Ms. Pinki Anand, counsel for the respondent and have given my thoughtful consideration to their respective submissions.

7. At the outset, it is submitted by counsel for the petitioner that the arrangement envisaged by the impugned order could at best be for the vacation period and without detriment to the earlier order and could not be intended to upset and modify the order of the Guardian Judge dated 6.6.98 which was earlier upheld by this Court. On the other hand, the contention of learned counsel is that the order dated 6.6.98 stood modified by order dated 23.6.2000 and therefore, the respondent has the right to meet the minor daughter Medha on every Saturday and the petitioner is bound to comply with the modified directions for visitation of the minor child in the concerned Court to hand over the minor in custody of the respondent-father for a period of two hours up to 5.00 PM. It is submitted that the respondent-father has not been allowed to exercise his visitation rights during the pendency of the writ petition for a period of more than one and half year as the impugned order was stayed by this Court and the arrangement envisaged in the order dated 6.6.98 has not worked.

8. On a consideration of the facts and circumstances, various developments which have taken place and bearing in mind the paramount consideration of the welfare of the minor, this Court is of the view that the impugned order passed by the Vacation Judge was meant to take care of the iminent problem faced by the parties and could not have been intended to modify the order of the Guardian Judge dated 6.6.98 so far as the regular visitation rights of the father were concerned. The Additional District Judge while sitting as Vacation Judge was not justified in modifying the visitation rights granted to the father to the above extent. The question of modification or otherwise of the order dated 6.6.98 after the vacation period should have been better left to the jurisdiction and discretion of the Guardian Judge who was seized of the entire matter. The impugned order is, therefore, liable to be set aside.

9. In the result, this petition is allowed and the impugned order of the learned Additional District Judge (vacation Judge) dated 23rd June, 2000 is quashed. Liberty is, however, given to the parties to approach the learned guardian Judge for such relief as may be considered necessary, if it is felt that the arrangement in regard to the visiting rights as contained in the order dated 6.6.98 cannot be worked out smoothly.

10. With these observation, this petition stands disposed of.