Abid Rasool Bhat vs Mrs. Yasmeen Rasool

Hon'ble Mr. Mohammad Yaqoob Mir, Judge

By medium of this civil revision petition orders dated 9.9.2011, 29.9.2011, 24.10.2011 and 4.11.2011, passed by the Court of District Judge,

Srinagar in proceedings u/s 25 read with Section 12 of Guardians & Wards Act (hereinafter referred to as ""the Act""), are assailed.

Parties are married to each other, from the wedlock three children, namely, Areeba Abid (daughter aged 9 years 3 months), Areesha Abid

(daughter aged 7 years) and Ibrahim Abid Bhat (son aged 4 = years) were born. The marriage is subsisting but due to unfortunate disturbances in

marital relationship the parties are living separately and the children(wards) were living with the respondent.

Allegedly when the minor children were returning from their school, the petitioner allegedly has taken them into his custody forcing the

respondent to launch proceedings u/s 25 of ""the Act"". Alongside an application has been filed u/s 12 of the Act for interim custody.

During the pendence on 9.9.2011 arguments vis-`-vis application for interim custody were heard and the petitioner (non applicant) had been

directed to produce the minors on 29.9.2011. On 29.9.2011 due to paucity of time, the matter was re-scheduled for 24.10.2011. On the said

date minors were not produced, Court directed issuance of warrant. On 02.11.2011 petitioner (non-applicant therein) opted to remain absent. On

04.11.2011 application u/s 12 of ""the Act"" was disposed of. Trial Court noticed all the features of the case which include the indifferent attitude of

the petitioner in not producing the minor children, then the position of the children, and having been admitted in JP Academy, Meerut.

The respondent(mother) seems to have gone in search of her children to the said Academy. The Principal of the Academy intimated the

petitioner that there appears to be strained relationship between the couple, the respondent (wife) is coming to the school accompanying many

people, it creates disturbance for other children, so has been informed to take back the children. The Principal of the said Academy also seem to

have informed that at the end of the academic session father of the wards (petitioner) took the children on 20th of March, 2011 and did not return

back. In the process what the petitioner has been doing is that he tried to keep the children totally out of reach of the respondent (mother).

The Court below recording prima facie satisfaction about the welfare of the minor children opined that the children require a stable and regular

home with security so as to shape in right direction. The respondent (petitioner herein) has defied the court orders and has created an atmosphere

rendering the welfare of the minor children in jeopardy and then has opined that in the interests and welfare of the minors, temporary custody has

to be handed over to the mother (respondent herein), further has observed that since the respondent (petitioner herein) is absconding along with

minor children, therefore, only course left open to the Court is to procure attendance of the minor children by issuing a non-bailable warrant of

arrest to be executed by IG, Kashmir. This warrant till date appears not to have been executed because of indifferent attitude of the petitioner.

Aggrieved by the orders passed from time to time relatable to the interim custody of the children, instant revision petition has been filed.

The first question for consideration is as to whether revision is maintainable in view of the amendment to Section 115 of the Code of Civil

Procedure. In terms of amendment, proviso to Section 115 has been substituted by the following proviso:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit

or other proceedings, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit

or other proceedings.

The guiding principle in-keeping with the legislative intent in substituting the proviso is that the revision can only be maintained at the behest of the

party applying for the revision when the order impugned if would have been passed in favour of the said party would have the effect of terminating

the suit or the proceedings finally, only in that eventuality revision can be maintained, not otherwise.

In the instant case proceedings u/s 25 of ""the Act"" are pending and it is during the pendence of the said proceedings, application for interim

custody, in terms of Section 12 of ""the Act"", has been filed and considered. The orders passed in the application, if would have been in favour of

the petitioner, would not in any manner finally dispose of the proceedings u/s 25 of ""the Act"". When it is so revision cannot lie as the same is hit by

the said proviso. Trial court has simply, on prima facie strength, concluded that by way of interim measure for the welfare of the minor children,

temporary custody has to be with the mother, more particularly when two daughters aged 9 and 7 years respectively and son aged 4 = years old

deserve more maternal care.

Confronted with the position of non-maintainability of the petition, learned counsel for the petitioner firstly relied on the judgment Md. Motiur

Rahman Vs. Mustt. Achia Khatoon and Others, wherein it has been held that if during the course of the proceedings or trial an order is made, the

party aggrieved may apply u/s 115(1) for revision but such an order will not be interfered with, unless the order is such which would have the effect

of disposing of the suit or proceedings finally, if made in favour of the revisionist.

Next learned counsel for the petitioner relied on the judgment captioned Twentieth Century Fox Film Corporation and another Vs. NRI Film

Production Associates (P) Ltd. (AIR 2003 Kar 148), wherein again it has been concluded that the order in case would have been made in favour

of the party applying for the revision if has the effect of finally disposing of the suit or other proceedings, then revision can lie.

Again learned counsel relied on the judgment reported in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, . It

shall be quite relevant to quote para 32 from the said judgment:

A plain reading of S. 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for

revision would have given finality to suit or other proceeding. If the answer is yes then the revision is maintainable. But on the contrary, if the

answer is no then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the

revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of

revision under S. 115. There is marked distinction in language of S.97(3) of the Old Amendment Act and S.32(2)(i) of the Amendment Act. While

in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is

significantly absent in S. 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the

right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the

altered mode, without exception, unless there is a different stipulation.

On the same analogy case of the petitioner herein is considered and it is already concluded that even if the order in the interlocutory application

would have been made in favour of the petitioner, that would not terminate the proceedings as pending u/s 25 of the Act.

For the afore-stated reasons, the revision petition being not maintainable is dismissed along with connected CMP.