Delhi High Court
Ashish Dubey vs Sara Carriere Dubey on 17 August, 2022
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 618/2022
ASHISH DUBEY ..... Petitioner
Through: Ms. Vandana Kejriwal, Mr. Tanmay
Mehta, Advs.
versus
SARA CARRIERE DUBEY ..... Respondent
Through: Ms. Priya Hingorani, Sr. Adv. with
Mr. Aman Hingorani, Mr. Himanshu
Yadav and Mr. Anirudh Jamwal,
Advs.
% Date of Decision: 17th August, 2022
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
JUDGMENT
DINESH KUMAR SHARMA, J. (Oral)
1. The present petition has been filed challenging the impugned order
dated 16th June, 2022. The petitioner is aggrieved of certain
observations made by the learned Trial Court which are detailed
hereinunder:
(i) "It appears that the petitioner/father has deliberately and with
mala fide intention chosen the travel package to Sikkim to
restrict the respondent/mother from accompanying the
minor children to Sikkim. The same is evident from the fact
that the said proposed itinerary/travel package
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:18.08.2022
17:02:34
i. is valid only for Indian citizens. The respondent, a
French national, is specifically debarred from the said
trip to Sikkim. Thus, the respondent cannot travel to
Sikkim or attend the minor children, in case the need
arises.
ii. The mala fide intention of the petitioner is also apparent
from the fact that he has chosen to come back from
Sikkim on 25.6.2022, which happens to be his minor
son's birthday. He has chosen the said day so that the
respondent is unable to celebrate the birthday of the
child with her." And (ii) Prima facie, petitioner is having
an extra marital affair with 'X' and the court vide order
8.10.2021 has restrained 'X' from interacting with the
children during the court ordered visitations."
2. The learned counsel for the petitioner submits that though the petition
has become infructuous yet the observations made by the learned
Trial Court in the impugned judgment may come in the way and
prejudice the petitioner in multifarious litigations pending between the
parties.
3. Learned counsel submits that these observations have been made by
the learned Trial Court without any basis and thus, the same are liable
to be expunged.
4. Ms. Priya Hingorani, learned senior counsel for the respondent has
vehemently opposed the petition and submits that these observations
as enumerated herein above were made on the basis of the material
available on record. Learned senior counsel submits that there is no
ground for expunging these remarks. However, learned senior counsel
agrees that the petition has become infructous as the visitation rights
were confined to the month of June.
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:18.08.2022
17:02:34
5. The parties are at extreme variance to each other regarding the
veracity of certain observations in the impugned order, as indicated
herein above. The contention of the petitioner is that the same have
been made without any basis, whereas the plea of the learned senior
counsel for the respondent is that the observations were made on the
basis of the material available on record.
6. It is an admitted fact that these statements were made by the learned
Trial Court Judge in the interim order passed on an application being
moved by the petitioner seeking visitation rights. It is settled
proposition that such orders are interim in nature. The circumstances
for grant of visitation rights are dynamic and keeps on changing from
time to time.
7. The Courts while deciding such applications have to examine the
matter independently without being influenced by any other material.
It goes without saying that every time, the paramount consideration is
the welfare of the child. It is an admitted position that the petition
under Section 12 of the Guardian and Wards Act, 1890 is still pending
before the learned Trial Court and is yet to be finally adjudicated. The
endeavor of the Court should be to put an end to the acrimonious
litigation to the extent as possible. The endeavor of the Courts should
also be to keep the focus right so as to get the matter adjudicated
within the framework of law and on the basis of the pleadings of the
parties. In such matters, serious allegations and counter allegations by
husband and wife are very common. The Courts every time, while
hearing the parties, have to maintain a strict balance and is required to
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:18.08.2022
17:02:34
see that the observations made by it are not blended with any
sentiments and remain confined to the core matter in issue.
8. It is an admitted case that the visitation rights granted by the
impugned order were related to the summer vacations and thus as far
as this part is concerned, the petition has become infructous.
However, without going into rival contentions of the parties and
merits of the case, this Court considers that if any application is
moved by any of the parties for visitation right/ interim custody or
while deciding the petition under Section 12 Guardian and Wards Act,
1890, finally, the Principal Judge, Family Courts shall decide the
matter independently of any observation made in the impugned order.
9. It is clarified that this Court has not made any expression on the
merits of the case.
10.With these observations, the petition stands disposed of.
DINESH KUMAR SHARMA, J
AUGUST 17, 2022
Pallavi
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:18.08.2022
17:02:34
