Jawed Zia vs Syed Afshan Rehman
2010 Latest Caselaw 3162 Del

49.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CONT.CAS(C) 858/2009

                                     Date of Judgment 08 July, 2010

JAWED ZIA                                              ..... Petitioner
                    Through :   Mr.Manoj K. Singh, Ms. Gunita Pahwa
and
                                Mr. Ankit Parhar, Advs.

                    versus

SYEDA AFSHAN REHMAN                                     ..... Respondent
              Through :         Ms. Geeta Luthra, Sr. Adv. with
                                Mr. Parinay D. Shah, Adv.

      CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI
      1.  Whether reporters of local papers may be allowed
          to see the Judgment ?
      2.  To be referred to the Reporter or not?
      3.  Whether the judgment should be reported in the
          Digest?

G.S.SISTANI, J (ORAL):
CM NO.11095/2010.

    1. Present petition has been filed by the petitioner (husband) for
      initiating contempt proceedings against the respondent (wife)
      for non-compliance of various orders passed by this Court as
      well as the Order dated 29.10.2004 passed by a Division Bench
      of this Court.
    2. By the present application, petitioner seeks modification of the
      order dated 21.5.2010 on the ground that inadvertently he did
      not bring to the notice of the Court that the summer vacations
      are to be governed by an order dated 5.5.2008 passed with the
      consent of the parties and not by the order of the Division
      Bench dated 29.10.2004.
    3. This Court on 21.5.2010, prior to summer vacation of both the
      children, had passed a consent order, which reads as under:

             "% 21.05.2010


CONT CAS(C)No.858/2009                                         Page 1 of 6
              Present:        Mr.Manoj Kumar Singh and Mr.Ankit Parhar,
                             Advs. for the petitioner.
                             Ms.Geeta Luthra, Sr. Advocate along with
                             Ashutosh Agarwal, Advocate along with
                             respondent in person.

             + CONT.CAS(C)NO.858/2009 & CONT.CAS(C)NO.882/2006
                      Counsel for petitioner on instructions from petitioner, who is
             present in court, submits that order dated 29.10.2004 shall be
             complied with in all respects.       Respondent, who is also present in
             court, submits that she will also comply with the order dated
             29.10.2004 in all respects.
                      Respondent further submits that she will hand over the
             custody of the girl child to the petitioner from her house today itself
             at 7:30 p.m.. Petitioner on the other hand submits that he will hand
             over the custody of the son to the mother (respondent) on
             12.06.2010 at 11:30 a.m. from his house.
                      Parties shall be bound by the statement made in Court today.
                      List on 20.08.2010.



                                                                    G.S. SISTANI, J.

May 21, 2010 'ssn'"

4. The present application is opposed by counsel for the respondent/ non-applicant. The mother, respondent herein, had filed a writ petition being W.P.(Crl.)1271/2004 before the Division Bench of this Court, which was disposed of on 29.10.2004. Relevant portion of the order dated 29.10.2004 reads as under:

"10. In the totality of what we have stated above, we make the following order :-

i) The writ petition is allowed and the custody of baby Shabana Zia, daughter of petitioner and respondent No. 3 is directed to be restored to the petitioner.

ii) Respondent No. 3 shall, however, has the right to meet and take the minor child out once every week provided such outing does not affect her studies in the school. Needless to say that custody of the minor shall be restored to the petitioner after very such meeting or outing as the case may be.

iii) Respondent No. 3, father of baby Shabana Zia shall further have the right of interim custody of the minor during the period the minor is free from the school on account of vacations, when the minor can be taken by the said

respondent at his own expense to Bangalore but restored to the custody of the mother in Delhi a week before the re- opening of the school after such vacations.

iv) Direction no. 3 above is subject to the condition that respondent No. 3 permits the petitioner to take at her own expense to Delhi Master Sheraz zia during the time he is free form (sic. from) the school on account of vacations to be restored to the custody of the father a week before the re- opening of the school after such vacations."

5. According to the petitioner, as the respondent failed to comply with the terms of the Division Bench he filed a contempt petition being No.882/2006, wherein on 4.1.2008, a Single Judge of this Court, with the consent of the parties, had issued directions with regard to custody of the children. In another contempt petition, filed by the husband, being CCP No.1173/2006, on 5.5.2008, with the consent of the parties, certain directions were issued with regard to visitation of the children during the summer vacation of the children.

6. Counsel for the petitioner while relying on the order dated 05.05.2008 submits that for the present summer vacation the parties have jointly consented on the terms mentioned in the order dated 05.05.2008 and, thus the custody of the son was to be handed back to the petitioner by 15.06.2010. He further submits that that the order dated 05.05.2008 was passed keeping in view the fact that the summer vacation of the son is for a longer period i.e. upto 16.8.2010, while the summer vacation of the daughter is upto 1.7.2010. Counsel further submits that inadvertently this fact could not be brought to the notice of the Court when the order dated 21.5.2010 was passed.

7. Although no reply has been filed, the present application has been vehemently opposed by learned senior counsel appearing on behalf of the respondent primarily on the ground that the agreed terms with regard to visitation and custody with respect to the children is to be governed by the orders of the Division Bench dated 29.10.2004. Senior counsel further submits that

the order dated 5.5.2008, sought to be relied upon by the petitioner, was only with regard to summer vacation of the year 2008 and not for the subsequent years and, thus, the present application is misconceived and the same should be dismissed.

8. I have heard counsel for the parties and also perused the pleadings as well as the orders which have been passed. The predecessors of this Court, on 13.1.2010, while directing the respondent to comply with the order of the Division Bench as well as the Single Judge of this Court, regarding visitation rights of the petitioner to the child, observed that non-compliance by either of the parties shall be viewed seriously. On 11.3.2010, the predecessors of this Court was constraint to observe that "respondent is directed to comply with the order of this Court strictly. In case the order is not complied with the Court shall not hear the respondent". The order dated 5.5.2008 passed in CCP No.1173/2006 is a consent order specifically with regard to summer vacation of the children. Order dated 5.5.2008 reads as under:

             "                            05.05.2008

             CCP No.1173/2006

Counsel for the parties, Ms. Syeda Afshan Rahman and Mr. Javed, who are present have agreed on the following terms for visitation during the summer vacation of their children:

(i) The vacation of Ms. Shabana, the minor daughter of the parties commences from 16th May, 2008 and end on 1st July, 2008. It is agreed that she shall be produced by Ms. Syeda Afshan Rahman at 5 p.m. in the chamber of Ms. Geeta Luthra, Advocate, Chamber no.109, Delhi High Court and shall be handed over to the father Mr. Javed Zia. Shabana will be in the custody of her father till 15th June, 2008.

(ii) The vacation of Master Shiraz, the son of the parties commences from 6th June, 2008. He shall be brought to Delhi alongwith Ms. Shabana on 15th of June, 2008. Both the children shall be handed over to Ms. Syeda Afshan Rahman at 5 p.m. on 15th June, 2008 in the chamber of Ms. Geeta Luthra, Advocate, Chamber no.109, Delhi High Court, New Delhi.

(iii) Ms. Syeda Afshan Rehman shall hand over custody of Master Shiraz to Mr. Javed Zia in the Chamber of Ms. Geeta Luthra, Advocate, Chamber no.109, Delhi High Court at 5 p.m. on 15th July, 2008.

(iv) Both parties undertake that this order shall be strictly complied with.

The parties shall remain bound by the agreement and undertaking.

A proposal has been mooted by and on behalf of the petitioner to fully and finally resolve the matter. Time is sought to consider the same.

At request of counsel for the parties, list on 18th July, 208 at 3.30 p.m.

Dasti to counsel for the parties."

9. I find no force in the submission of learned senior counsel for the respondent that the aforesaid order was passed only for the year 2008. A careful reading of the order dated 5.5.2008 would show that the order was with respect to visitation during summer vacation of the children, as stated in para one of the order, and further a fine balance has been made with regard to the children spending time with the father and mother and also spending time amongst themselves (brother and sister). In the Order dated 5.5.2008 it was directed that the vacation of the minor daughter commences from 16.5.2008 and ends on 1.7.2008. The position is no different this year. The minor daughter was to be handed over to the father from 16.5.2008 uptill 15.6.2008. The effect of which would be that during this period the brother and sister would be together with the father. As per the second direction issued, the son as well as the daughter, were to be handed over to the mother on 15.6.2008 uptill 15.7.2008. The effect of which would be that both, the brother and sister, would spent time together with the mother and thereafter the custody of the son was to be handed back to the father for the balance period of his vacation.

10. Learned senior counsel for the respondent has submitted that the father has the benefit of meeting the daughter once in a week, while similar benefit is not available with the respondent herein.

11. Learned counsel for the petitioner, on instructions, submits that the petitioner will have no objection if the mother wishes to meet the son every week and in case such a request is made, the same shall be considered favourably by his client.

12. It may also be noticed that during the winter vacation as also other holidays like Diwali and Durga Puja, both the parents have agreed to share the custody of the children equally. It may also be noticed that in the present contempt proceedings it is not for this Court to vary any order, which has been passed, much less the order passed by the Division Bench or the consent order between the parties. However, the order dated 5.5.2008 is a consent order between the parties and neither of the parties can willfully disobey the same. Accordingly, present application is allowed. Parties are directed to comply with the order dated 29.10.2004, which was agreed to be varied by the parties as per the order dated 5.5.2008, particularly with regard to summer vacation of the children. The custody of the son be handed over to the father, as per the order dated 05.05.2008. Parties shall strictly comply with the order dated 05.05.2008 for the Summer Vacations.

13. List on 20.08.2010, the date already fixed, for further directions/ hearing. DASTI.

G.S. SISTANI, J.

July 08, 2010 'msr/ssn'