Delhi High Court
Gaurav Tomar vs Bhavna Tomar And Others on 7 May, 2010
Author: G. S. Sistani
20.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated 7th May, 2010
+ CONT.CAS(C) 542/2009
GAURAV TOMAR ..... Petitioner
Through : Mr. Rudra, Adv.
versus
BHAVNA TOMAR & ORS. ..... Respondents
Through : Mr. Raman Kapur, Ms. Fracisca Kapur and
Mr. Suraj Rathi, Advs.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
G.S.SISTANI, J. (ORAL)
1. Petitioner is the husband of respondent no.1. Respondents no.2 and
3 are the mother and father of respondent no.1. Petitioner alleges
contempt and violation of order dated 21.5.2009 passed by a
Division Bench of this Court in W.P.(Crl.)No.71/2009.
2. Learned counsel for the petitioner submits that during the hearing
of W.P.(Crl.)No.71/2009 filed by respondent no.1, a Division Bench
of this Court, on the basis of an arrangement arrived at between the
parties, passed the following order on 21.5.2009:
" IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(CRL) 71/2009
BHAVANA TOMAR ..... Petitioner
Through: Mr Parag Chawla
versus
STATE (NCT OF DELHI) and ORS. ..... Respondents
Through: Mr Sanjeev Bhandari, ASC for the State
Mr Rudra Kahlon, Advocate for the Respondent No.4.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE AJIT BHARIHOKE
ORDER
21.05.2009
The learned counsel appearing on behalf of Bhavana Tomar as well
as the learned counsel appearing on behalf of Gaurav Tomar have
indicated that an arrangement has been arrived at whereby the custody
of the child Sanvi is shared by the parents. It has been agreed that
during the summer/winter vacation, the child shall spend an equal
number of days with the mother (Bhavana Tomar) and
the father (Gaurav Tomar) and the exact schedule would be decided as per
mutual consent. It has further been agreed that during the festival
holidays also, the same schedule of sharing the custody on equal basis
would be adopted and the parties shall mutually decide the exact
schedule. During the holiday, when Sanvi s school is in session, she will
spend all the school days with her mother. In other words, she will be with
her mother from Monday to Friday. On
Saturday, at around 11.00 a.m. to 11.30 a.m., she will be handed over to
the father, who will take her custody till Sunday evening around 6.30 p.m.
In case the child Sanvi falls sick, the party who has the custody of the
child at that point of time will inform the other party and they will
mutually take a decision with regard to her treatment and care. The child
shall continue to study at Tagore International School, DLF, Phase-III,
Gurgaon. In view of the above arrangement, this writ petition stands
disposed of. The parties are at liberty to approach the appropriate court
if they seek any modification of the arrangement.
BADAR DURREZ AHMED,J
AJIT BHARIHOKE, J
MAY 21, 2009
Pst"
3. It is further contended that the order dated 21.5.2009 was modified
by a subsequent order dated 28.5.2009.
4. Order dated 28.5.2009 reads as under:
" IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(CRL) 71/2009
BHAVANA TOMAR ..... Petitioner
Through: Mr Parag Chawla
versus
STATE (NCT OF DELHI) and ORS. ..... Respondents
Through: Mr Sanjeev Bhandari for R 1-3.
Mr Rudra Kahlon for the R-4.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE AJIT BHARIHOKE
ORDER
28.05.2009
CRL. M. A. 6214/2009
After the writ petition was disposed of on 21.05.2009 certain
issues have arisen which necessitated the filing of the present
application. The issue is with regard to the sharing of the custody
of the child during the vacations. It has now been agreed that the
custody of the child would be handed over by the respondent No. 4
to the petitioner on 02.06.2009 and the petitioner shall
retain custody of the child for a period of 15 days thereafter, that
is, up to 17.06.2009 whereafter, for the remaining period of the
school vacations, that is, up to 01.07.2009, would be shared in the
following manner:-
The custody of the child with the father would be from
17.06.2009 to 23.06.2009 and with the mother would be from
23.06.2009 onwards till the end of the vacations and thereafter
the arrangement as indicated in the order dated 21.05.2009 shall
be continue to be followed.
BADAR DURREZ AHMED, J
AJIT BHARIHOKE, J
MAY 28, 2009
SR"
5. Counsel for the petitioner submits that the respondents have failed
to comply with the orders dated 21.5.2009 and 28.5.2009. Counsel
further submits that the custody of the child was not handed back to
the petitioner and, thus, the respondents have willfully disobeyed
the orders passed by this Court. Counsel also submits that the act of
not handing over custody of the child to the father was intentional
and willful with a view to over reach the orders passed, which is
evident from the fact that on 1.7.2009 itself respondent no.1 made
an application under Sections 7 to 11 and 17 of the Guardianship
and Wards Act, 1890, before the District and Session Judge, Patiala
House Courts, New Delhi. Counsel further submits that an
application was filed together with this petition for interim relief, in
which a prayer was made that till the time the respondent
(petitioner herein) appears before the Court the girl child may not
be sent to Sainik Farm on 3.7.2009 and also the visit of the minor
child may be stayed till the next date of hearing. Counsel next
submits that mere reading of the petition and the application filed
along with the petition would show that the intention of respondent
no.1 (mother) was to flout the orders passed by the Division Bench
of this Court. It is submitted that medical certificate annexed with
the communication dated 22.7.2009 is not a genuine document.
6. Reply has been filed. The allegations made in the petition have been
denied by the respondents. It would be useful to reproduce paras 1
& 2(b) to (f):
1. That at the outset, respondents respectfully submit that
they have utmost respect and regard for the orders passed
by this Hon'ble Court and there can be no question of
respondents disobeying any orders of this Hon'ble Court. It
is respectful submission of the respondents that they as
duty bound to observe and strictly comply with the orders
passed by this Hon'ble Court, have not violated any order
of this Hon'ble Court. However, respondents tender
unconditional apology if they have inadvertently violated
any order of this Hon'ble Court as there is no occasion for
respondents to violate any order passed by this Hon'ble
Court.
2. b. That however, due to extreme heat prevailing in Delhi in
June, 2009, State Government extended the schools'
vacations from 01.07.2009 when the schools were duly
open to 06.07.2009. As per order dated 28.05.2009, the
custody of the child was to remain with respondent No.1 till
the end of summer vacations which stood extended to
06.07.2009. However, on 04.07.2009, child was taken sick
and this was duly informed to petitioner by letter dated
07.07.2009 and medical certificate was enclosed with the
said letter, they being sent by registered post. Copy of said
letter dated 07.07.2009 alongwith postal receipt has been
enclosed as Annexure A-1 with earlier affidavit dated
23.07.2009 filed by the respondent No.1.
c. That this fact of child being taken sick was also duly
informed to the school on 09.07.2009 on telephone and
also vide letter dated 11.07.2009 which was sent by speed
post and copy thereof has been filed as Annexure A-2
alongwith earlier affidavit dated 23.07.2009.
d. That the child rejoined the school on 10.07.2009.
However, Sh. Y.S. Tomar, father of petitioner visited
residence of the respondents on 06.07.2009, met the child
and had satisfied himself about the sickness of the child.
e. It may further be pointed out that vide order dated
21.05.2009 in WP(Crl)71/2009, it was clearly held by this
Hon'ble Court that in case, the child fall sick, the party who
has the custody of the child at that point of time will inform
the other party and they will mutually take a decision with
regard to treatment and care.
f. That from the above, it is apparent that there is no
question of disobedience of any order of this Hon'ble Court
by the respondents. The present petition is not
maintainable and is liable to be dismissed.
7. Counsel for the respondents submits that there is no willful
disobedience of the order passed by the Division Bench. The
custody of the girl child was to remain with the mother from
23.6.2009 onwards till the end of school vacations. The school
vacation was extended upto 6.7.2009. Counsel further submits that
reading of the order dated 28.5.2009 was interpreted by the mother
to mean that the custody of the child was to remain with her upto
the end of the vacation, which is 6.7.2009. In addition thereto
counsel also submits that the child had suffered from
gastroenteritis. Counsel next submits that a communication dated
7.7.2009 along with a medical certificate was sent to the petitioner
(father of the child) informing him about the illness of the child.
Besides a communication dated 11.7.2009 was addressed to the
Principal of the School together with a copy of the medical
certificate. Counsel contends that the respondents have all along
complied with the orders passed by the Division Bench and even
after 1.7.2009 the arrangement has been followed in all fairness.
8. I have heard counsel for the parties and perused the pleadings as
well as the annexures filed. I am unable to accept the submissions
made by counsel for the petitioner that the child was not sent to the
father and the order of the Division Bench was willfully violated. The
documents placed on record show that the girl child was suffering
from gastroenteritis and thus could not even attend the school. I am
satisfied that it was in the interest of the girl child, who was barely
three and a half years of age at the relevant time, in not sending the
child either to the school or to the father during the illness and this
borne out from the medical certificate according to which the child
was advised bed rest for five days. The petty differences and the
continuous fight between the parents cannot be permitted to put
the interest of the child in the background. Since I am satisfied with
the explanation rendered by the respondents that the custody of the
child could not be handed over for cogent reasons, there is no willful
disobedience of the orders of this Court. In view of this, I find no
merit in the present petition, the same is accordingly dismissed.
Parties undertake that they will continue to abide by the orders
passed by the Division Bench in letter and spirit unless varied by the
competent court of jurisdiction.
9. Notice of contempt is discharged.
G.S. SISTANI, J.
May 07, 2010
'msr'
