Ashwin Chaudhary vs Smt. Kiran Chaudhary

U.C. Dhyani, J. (Oral) - By means of present writ petition, the petitioner seeks following reliefs, among others:

(i) Modify/amend the order dated 20.06.2016, passed by this Court thereby directing the Principal Judge, Family Court, Nainital to decide the application under Section 26 of the Hindu Marriage Act, 1955, filed by the petitioner within a period of one week from 04.07.2016, instead of the period between 22.06.2016 to 28.06.2016.

(ii) In the meanwhile, direct the respondent to hand over the minor child to the petitioner with immediate effect so that the minor child can live with the petitioner and his family members at Nainital till 06.07.2016 on which date, the petitioner will hand over the custody of the minor child to the respondent till the disposal of the application under Section 26 of the Hindu Marriage, 1955.

So far as the first relief is concerned, it is innocuous prayer and, therefore, not objected to by learned Senior Counsel for the respondent. When WPMS no. 862 of 2016, between the same parties, was decided by this Court on merits on 20.06.2016, this Court, in the final analysis, directed as under:

"7. The order impugned is, therefore, set aside. A direction is accordingly given to the court below to take up the issue of custody of child moved under Section 26 of the Act at the earliest possible and decide the mater by 28th June, 2016. The parties will appear in person or through their counsel before the court below on 22.06.2016.

Section 26 of the Act is, therefore, intended to enable the Court to pass suitable orders from time to time to protect the interest of minor child (ren). It was incumbent upon the court below to consider the custody and visitation rights of one of the parents in the matter of custody of a child. Any court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing age. It is on account of this reason, the custody orders have been held to be interlocutory orders and they are capable of being altered or moulded or amended keeping in mind the requirement of a child. The visitation right is, therefore, granted to the petitioner to visit his child at his mother''s house at Dehradun, till such time the application under Section 26 of the Hindu Marriage Act is decided by the court below."

It has been pointed out by learned counsel for the petitioner and concurred by learned counsel for the respondent that learned Principal Judge, Family Court, Nainital is on leave till 4th July, 2016.

Para 7 of the order dated 20.06.2016, passed by this court earlier in WPMS no. 862 of 2016, is accordingly modified and a direction is hereby given to the court below to take up the issue of custody of child moved under Section 26 of the Hindu Marriage Act, 1955, at the earliest possible and decide the matter by 11.07.2016. The parties will appear in person or through their counsel on 04.07.2016, the day on which learned Presiding Officer is supposed to resume his official duty.

Learned counsel for the petitioner laboured hard to bring home the point that the child be permitted to live with the petitioner and his family members at Nainital till 06.07.2016, on which date the petitioner will hand over the custody of minor child to the respondent till the disposal of the application under Section 26 of the Hindu Marriage Act. Learned Senior Counsel for the respondent was requested to seek instructions from his client in this regard. On receiving instructions, learned Senior Counsel for the respondent submitted that the petitioner may be permitted to take the child to some restaurant, Mall, market etc., but with the mother, i.e., the respondent. When the child was interviewed by this Court in the Chamber on 20.06.2016, the child submitted that he does not want to accompany his father. The possibility of his tutoring by the mother cannot be ruled out. Every case has to be decided on its own merit. The fact remains that when the mother of the child is ready to accompany the petitioner-husband to any place at Dehradun, what objection can the petitioner-husband have to such a proposal of the respondent-mother? The visitation right was already granted to the petitioner to visit the child at his mother''s house at Dehradun till such time the application under Section 26 of the Hindu Marriage Act is decided by the court below. This Court need not add anything further in the matter. Visitation right was granted vide order dated 20.06.2016 and the same is being reiterated by this order in the manner that the petitioner may visit his child either at his mother''s house at Dehradun or at any other place, away from her house (at Dehradun), but, in the presence of his respondent-mother. In other words, if the petitioner wants to take the child to some restaurant, Mall, market, cinema hall etc., his respondent-mother shall accompany them. They can go and sit anywhere, but only with their mutual consent.

This is in continuation to court''s order dated 20.06.2016, which order may be read in reference to present petition also.

Writ petition thus stands disposed of.

After the dictation was over, learned counsel for the petitioner wanted this Court to apprise the respondent through her Senior Counsel that the petitioner is coming to Dehradun day after tomorrow. Learned Senior Counsel for the respondent is requested to inform the same to his client, i.e., respondent, accordingly. No hostility, please.