Naira vs Asif Akbar Sofi

Looking from a distance, the children, who suffer at the cruel hands of deprivation, must be envying Ahmad & Sana, the children born to the

parties of this case, for having born to parents, who are highly educated and highly placed in the society. These innocent siblings, however, must

not be knowing through which mental, physical and psychological ordeal Ahmad & Sana must be passing, because of the estranged relationship of

their parents. The children always want and desire that they must grow under the ever lasting love and affection of both their parents. Ahmad &

Sana for the time being are deprived of love, care, attention and affection of one of their parents viz. father, which otherwise, is fundamental for

grooming their personalities and shaping their future. While looking into the record of the trial court, xerox copy of some letters written by

petitioner to respondent, her husband reveal some untold miseries, and incalculable sufferings she has been subjected to, allegedly, by her husband

and his other relations. One of the letter reveals that both the children Ahmad & Sana have also been allegedly subjected to savage and inhuman

treatment and allegedly attempt made on life of Sana by the relatives of the respondent. Letter, after referring to the inhuman treatment to which

petitioners and her children claim to have been subjected to still wants to have reconciliation with respondent. The reason upper most for having a

reapproachment with respondent seems to be the future of the minor children. The earnest efforts made by the petitioner which are revealed by the

communication placed on the files of the trial court, to have a reconciliation with the respondent seems to have for the time being failed. The record

further reveals that petitioner because of the alleged conduct of the respondent and his close relatives was compelled to file FIR u/s 498 A RPC

against the respondents and his relatives in women's police station, and it appears that investigation thereof has culminated in filing of challan against

them in the court of competent jurisdiction.

This revision petition is filed by the petitioner, being aggrieved of the order dated 8th of July 2008 passed by the learned Principal Sessions

Judge Srinagar, in terms of which the counsel for the petitioner was directed to produce minor children before the court on the next date, so as to

enable the respondent herein to see and meet them.

It appears from the record that earlier petition u/s 10 of Guardian and Wards Act was filed by respondent praying therein for appointing him as

guardian of the minor children. An objection appears to have been taken by petitioner about the maintainability of the said application on the legal

ground that father being natural guardian need not seek order from the court for appointment as guardian of the minor children. During the

pendency of the said application, orders were passed for production of minor children. Order was passed by the concerned court on 2nd June

2007 for production of children before the court. The petitioner filed objections to the maintainability of the main application and also filed an

application for recalling the order dated 2nd of June 2007. The said case was transferred by Principal, District and Sessions Judge to court of 1st

Additional District Sessions Judge, where again petitioner raised objection about the maintainability of the application for appointment of guardian,

and further prayer for recall of order dated 2nd of June 2007. The court instead of considering the objections of the petitioner about the

maintainability of the application seeking appointment as guardian of the minor children, again on 4th of August 2007 directed petitioner to produce

the minor children before the court. The court without adverting to the objection raised by the petitioner about the maintainability of the application,

initiated action on an application filed by the respondent seeking to punish the petitioner for having violated court directions dated 4th of August

2007.

Be that as it may, the matter was brought before this Court in Civil Revision no. 132/2007. This court while holding that the application filed by

the respondent u/s 10 of the Guardian and Wards Act is not maintainable set aside the impugned order. This Court made some observations on

the issues which had arisen in the case and one observation which is relevant and material for the disposal of this ease made by this Court in the

earlier revision decided on 4th of March 2008 is reproduced as under:

There is nothing wrong in directing meetings of the minors with their parents, it is rather recommended as it some times works as a ground for

reconciliation between the parties but while making such an order the courts must act very cautiously. Any such order should be made after taking

into consideration all the circumstances and after giving due opportunity of hearing to the person who has the custody of the minor. Since

summoning the minors to the court rooms is likely to have adverse psychological effect on the minors, such meetings should be arranged, as far as

practicable, at the residence of any common relation, family friends or the chamber of the Advocates. It is always proper to have consensus of the

counsels of the parties/parties over the place of such meeting "".

That after the decision of this Court in Civil Revision no. 132/2007, the respondent filed petition u/s 25 of Guardian and Wards Act praying

therein for grant of custody of minor children. During the pendency of the said petition, the application was filed on 10'1' of June 2008 by counsel

for the respondent praying therein that petitioner herein be directed to keep the children available before the court or at some other

appropriate/convenient place to enable the respondent herein to see his children and have interview with them periodically. Record of the trial court

reveals that copy of the application was provided to the counsel for the petitioner herein to file objection to the said application. The case was

directed to be taken up on 24th of June 2008. On 24th of June 2008, the interim order of the trial court reveals that lawyers were on strike and

presiding officer was on leave and the court clerk fixed the case for 8th of July 2008. The order dated 8th of July 2008 passed by the trial court

reveals that the statement of the respondent was recorded in its entirety. The trial court directed the counsel for the petitioner herein to produce the

minor children Ahmad & Sana for meeting respondent herein on next date of hearing which was fixed on 23rd of July 2008.

The petitioner being aggrieved of the said order has challenged the same on the grounds that the order of production of the minor children has

been passed in disregard to the provisions of law. It is further projected in the revision petition that without granting an opportunity of hearing to the

petitioner herein the impugned order has been passed which renders it unsustainable in law. It has been further submitted in the revision petition that

the impugned order has been passed in violation of the mandate of judgement passed by this Court in Civil Revision no. 132/2007.

Heard learned counsel for the parties and considered the material on the Files as well. The learned counsel for the petitioner Mr. M. A.

Qayoom, while arguing the case reiterated the above stated grounds for seeking setting aside of the order impugned in this petition. The learned

counsel has further referred to the alleged inhuman and savage treatment to which the petitioner and the minor children have been subjected to,

allegedly by respondent and his family members. He has further referred to FIR no. 03/2007 filed by the petitioner. As per contention of the

learned counsel for the petitioner, the minor children are mortally afraid of the respondent and may not, as on date like to see him or have meeting

with him. The learned counsel further submits that the order impugned has been passed in violation of the orders of this court passed in Civil

Revision no. 132/2007 and requires to be set aside. The learned Sr. Advocate Mr. Zaffar Ahmad Shah, on the other hand while referring to

section 115 Code of Civil Procedure challenged the very maintainability of the revision petition by stating that order impugned in the revision

petition is not covered by any of the Clauses of Section 115 CPC. The learned senior advocate while elaborating his arguments further submitted

that the impugned order merely provides for production of minor children before the court so as to enable the respondent's father to have meeting

with them. The learned senior advocate further submitted that the father has right to see his minor children and have periodical conferences with

them.

It is true that respondent being father of the minor children is their natural guardian and is entitled to see his minor children and have conferences

with them. But the right of the respondent to have custody of the children and to have periodical conference with them is subject to the provisions

of Guardians and Wards Act. There can be cases in which even the natural guardian viz. father can be refused custody of the children and even to

have periodical conferences/meetings with the minor children if the facts of the case so demand. The application of the respondent for seeking

custody of the minor children is, like the minor children in its infancy and nothing can be said as to whether the application for seeking custody of

the minor children will be allowed or will not be allowed by the trial court. The objection raised by learned senior advocate Mr. Z. A. Shah about

the maintainability of this petition at First blush seems to be attractive but in view of the fact situation of this case the submission so made requires

to be rejected. This Court while exercising its revisional jurisdiction can satisfy itself about the legality, regularity, propriety of the impugned order,

which includes any part of the impugned order or proceedings. Reference in this behalf is made to case tiled Nalakath Sainuddin v. Koorikadan

Dan Sulaiman reported in (2002) 6 SCC page 1. Relevant paras, Para 10, 11, 12 & 17 (II).

The order impugned in this petition to the extent it directs production of minor children without complying with the observations made in Civil

Revision no. 132/2007 is rendered illegal and the trial court has acted in exercise of its jurisdiction illegally and with material irregularity.

The learned senior advocate Mr. Z.A.Shah submitted that the observations made in Civil Revision no. 132/2007 do not constitute binding

precedent so any deviation from such observation will not render the order impugned to have been issued in exercise of jurisdiction either illegally

or with material irregularity.

This Court in Civil Revision no. 132/2007 was besides considering the maintainability of the petitioner u/s 10 of the Guardian and Wards Act

also considering the impact of the order passed by the Subordinate court directing production of the minor children before the court. Those

proceedings were also between the same parties. The parties as also the trial court is not only bound to respect the observation made in the said

judgement but the trial court is duty bound to follow the observation made therein. Observation were made in the facts and circumstances of the

case and were relevant for the disposal of the case as the parties before the trial court were same and issues to be decided were almost identical.

The observations made by this Court having arisen in the fact situation of the case, if in strict legal sense would not constitute precedent having

binding effect, but would certainly constitute ""obitr dicta"" and it will be the duty of the trial court to follow them in the case and give them

considerable weight. The observations made by this Court on the points raised in a given case would also constitute binding precedent and thus

bind the trial court and will also be binding interne parties. Reference in this behalf is made to Para 7 of case titled Director of Settlements, A.P. &

Ors appellants vs. M.P. Apparaa and Anr. Respondent reported in (2002) 4 SCC page 638.

This Court in Civil Revision no. 132/2007 while recommending meetings of minors with their parents has said that while making such orders

the courts must act very cautiously. It has been further said any such order should be made after taking into consideration all the circumstances and

after giving due opportunity of hearing to the person, having the custody of the minor. It has been further observed that normally minors should not

be ordered to be produced in the court rooms as same is likely to have adverse affect on psychology of minors.

Testing the order impugned on the touch stone of observation made by this Court in Civil Revision no. 132/2007, the impugned order to the

extent it directs for production of minor children before the court is passed though in exercise of jurisdiction but illegally and with material

irregularity. The trial court has neither recorded any reason nor has given due opportunity of hearing to the petitioner.

The impugned order to the extend of directing the production of minors before the court is hereby set aside. The record be immediately send

back to trial court.

The trial court is at liberty to pass appropriate orders in accordance with law if the application seeking meeting with the minor children is

pressed by respondent. In such eventuality, the trial court shall pass appropriate orders in accordance with law and while following the observation

made by this Court in Civil Revision no. 132/2007. Record of trial court be send back immediately.