Delhi High Court
Shri Praveen Kohli vs Smt. Komal Alias Kamlesh on 5 August, 2016
$~S-1
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ REVIEW PET. 516/2015 & CM Nos. 9493, 24811/2015 in
MAT.APP.(F.C.) 60/2014
% Date of decision : 5th August, 2016
SHRI PRAVEEN KOHLI ..... Appellant
Through: Mr. Inderpal Khokhar, Adv.
with appellant
versus
SMT. KOMAL alias KAMLESH ..... Respondent
Through: Mr. Saleem Akhtar, Adv.
with respondent
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE P.S. TEJI
JUDGMENT (ORAL)
Gita Mittal, J
REVIEW PET. 516/2015
1. We have heard learned counsel for the parties.
2. Guardianship Petition No. 73/2012 was filed by the
respondent seeking custody of the minor daughter of the parties
from the custody of the present appellant inter alia on the ground
that he had developed an illicit relationship with one Ms. Kanchan
Tiwari and had a child namely Baby Mahi from the said illicit
relationship. In the guardianship petition, the respondent alleged
that she was thrown out of the matrimonial home in only her
wearing apparels. It was further alleged that on 19th March, 2012,
the present appellant had forcibly taken away the minor daughter of
the parties from her school necessitating the filing of the
guardianship petition. Several other allegations of physical cruelty
to her were asserted in the petition compelling her to lodge a
complaint before the Crime Against Women Cell as well as a
complaint vide DD No. 23 on 21st March, 2012.
3. It appears that despite service with the notice of the
guardianship petition, the appellant did not appear and
consequently was proceeded ex-parte by an order dated 5th January,
2013. The appellant's application under Order 9 Rule 7 of the CPC
for recall of the ex-parte order was also dismissed for non-
prosecution by the order dated 19th July, 2013 of the Guardianship
Act. Thereafter, on the basis of evidence adduced by the
respondent-wife, the trial court passed an order dated 24 th August,
2013 directing the appellant to hand over custody of the minor
daughter to the respondent.
4. The appellant's application under Order 9 Rule 13 read with
Section 151 of the CPC for setting aside the judgment dated 24th
August, 2013 was rejected by the guardianship court on 21 st April,
2014. The same was assailed by way of the appeal under Section
19 of the Family Court Act and stands rejected by the order dated
13th March, 2015.
Review thereof sought by the appellant was also rejected by
this court by the order dated 20th May, 2015 holding that the
appellant was trying to misuse judicial process.
5. It appears that thereafter the appellant sought grant of
visitation rights of the child of the parties by way of CM
Nos.18050-51/2015. For the reason that the main petition itself
stood rejected, these applications were dismissed by the order dated
2nd September, 2015.
6. The appellant submits that he had filed SLP No. 17872-
17873/2015 assailing the judgment dated 13th March, 2015
rejecting the main appeal and also the order dated 20 th May, 2015
rejecting the appellant's review of the said judgment. These
Special Leave Petitions were dismissed by the Supreme Court of
India by the order dated 13th July, 2015. Our attention is drawn to
the order passed by the Supreme Court wherein the petitioner has
been given liberty to approach this court for giving him visiting
rights.
The present petition was filed as a result thereof.
7. We may note that when the matter had come up before us,
on 6th November, 2015, keeping in view the nature of the dispute,
this court had referred the parties for mediation to the Delhi High
Court Mediation & Conciliation Centre. However, a mediation
report dated 23rd November, 2015 has been received informing that
the mediation was a non-starter.
8. The prayer for visitation rights by the appellant is
vehemently opposed by learned counsel for the respondent's wife.
A detailed reply has also been filed in this regard contending that
the application for interim relief is legally impermissible and non-
maintainable given the fact that the main Guardianship Petition No.
73/12 stands rejected by the court and the appeal thereof has also
been finally dismissed. It is objected that the petitioner is required
to file a substantive petition if he would have any claim.
9. On merits, the respondent is primarily opposing the prayer
for visitation rights on the ground that the appellant has effected a
second marriage with one Kanchan Tiwari and from this illicit
relationship, the appellant has two children, a female child namely
Mahi as well as a male child.
10. It is further objected that the appellant has no concern or
attachment with his daughter and that he has not cared to regularly
provide for her maintenance as well as the expenses of her
schooling etc. The submission is that the appellant had forcibly
taken away the minor daughter of the parties from her school on
19th March, 2012 which was an act which was completely
detrimental to her welfare. The grievance is that the appellant has
filed the application only to harass the respondent and the child of
the parties and that the appellant has no real interest or affection for
the daughter.
11. The respondent has contended that on 21st March, 2012, she
had reached the appellant's house alongwith her brother and sister-
in-law to search for her daughter, she was mercilessly beaten and
an apprehension of grave safety and security to her life as well as
that of the child is expressed.
12. These assertions have been made in the reply which has been
filed supported by an affidavit of the respondent.
We may note that no rejoinder thereto is forthcoming on
record.
13. It is orally submitted before us by learned counsel for the
appellant that pursuant to orders which have been passed, the
appellant has paid an amount of `5,000/- only on 16th July, 2016
towards the maintenance of the child. It is submitted that the
amount has been paid only when the order was made. We are of
the view that no court orders are necessary to ensure that a child is
looked after and it was incumbent on the appellant to ensure that he
provides for the child irrespective of as to whether there was any
order or not. This would have established real concern, if any, for
the welfare and interest of the child.
14. We are also informed by learned counsel for the respondent
for want of finances, the respondent was unable to pay the school
fees of the daughter of the parties resulting in her undergoing the
humiliation of her result being stopped.
It is apparent from the above narration that the petitioner has
no real concern or attachment for the child. There is substance in
the submissions of the respondent that visitation with the
petitioner, if permitted, may be detrimental to the welfare of the
child.
In view of the foregoing facts and circumstances, we are of
the view that no relief as prayed can be granted to the appellant.
This review petition is dismissed.
GITA MITTAL, J
AUGUST 05, 2016/kr P.S. TEJI, J
