Lekh Raj vs Meenakshi Sharma on 21 November, 2017

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

Pet u/s 104 No.58/2017, MP No.01/2017
Date of order: 21.11.2017
Lekh Raj Vs. Meenakshi Sharma
Coram:
Hon’ble Mr. Justice Alok Aradhe, Judge
Appearing counsel:
For Petitioner/Appellant(s) : Mr. Vikram Sharma, Advocate.
For respondent (s) : Mr. Sachin Sharma, Advocate.

In this petition under Section 104 of the Constitution of State of Jammu and
Kashmir, the petitioner has assailed the validity of the order dated 26.04.2017 by
which Trial Court has rejected the application seeking withdrawal of the order
dated 08.01.2016 insofar as it directs re-recording of the statement of the minor.

Facts

giving rise to filing of this Writ Petition briefly stated are that
petitioner is grandfather of the minor Krishna Sharma whose father namely
Rajesh Kumar who was the only son of the petitioner and was a police constable
expired on 25.10.2005 in a road accident. At the time of accident, the minor was
aged about 10 months and the respondent used to stay with the petitioner and the
petitioner used to take care of the minor. The respondent sought employment on
compassionate ground under SRO 43 as wife of the deceased. Thereafter, she
married one Ashok Sharma in November, 2007 without the knowledge of the
petitioner. The petitioner filed the petition for appointment of Guardian of the
minor under the Guardian and Wards Act. In the aforesaid proceeding, the
statement of the minor was recorded on 08.08.2014 in which he stated that he
wants to stay with his grandfather though on weekends he meets his mother as
well. Thereafter, the Trial Court by an order dated 18.12.2015 inter alia held that
since the minor is residing with mother, therefore, prior to taking a decision with
regard to rival claim of the parties as to Guardianship of the minor child, it is

Pet u/s 104 No.58/2017, MP No.01/2017 Page 1 of 3
appropriate and in the interest of justice to have a fresh interview with the minor
child in the Court. The respondent was directed to produce the minor on the next
date of hearing. Thereupon, the petitioner filed an application for recall of the
aforesaid order, which has been rejected by the Trial Court vide order dated
26.04.2017 inter alia on the ground that the interview of the minor child is being
made in order to decide the claim of the parties as regards guardianship and not
with regard to his custody. It is further held that interview of the minor child is
therefore imperative as he was earlier interviewed about more than a year’s ago.

Learned counsel for the petitioner submitted that no cogent reason has been
assigned by the Trial Court for holding that the interview of the minor afresh is
necessary for just and fair decision of the case. Mere pendency of the proceeding
before the Trial Court cannot be ground for ordering the fresh interview of the
minor. It is also pointed out that the Trial Court has not pointed out that the
statement made by the minor on 08.08.2014 is either doubtful or suffers from any
infirmity and therefore in the absence of the same, the Trial court grossly erred in
rejecting the application for recall of the order dated 18.12.2015.

On the other hand, learned counsel for the respondent submitted that the
order passed by the Trial Court is perfectly just and legal and does not call for any
interference by this Court.

I have considered the submissions made by learned counsel for the parties.
From perusal of the order dated 26.04.2017, it is evident that the Trial Court has
not assigned any valid and cogent reasons except stating that the interview of the
minor child afresh is imperative, as he was earlier interviewed about more than an
year’s ago. Mere lapse of time in deciding the proceeding cannot be ground for
fresh interview of the minor child. The Trial Court has to decide the issue with
regard to appointment of guardianship by taking into account the welfare of the
minor which is of paramount consideration. The impugned order suffers from the
error apparent on the face of record. It is accordingly quashed. The application
filed by the petitioner for recalling the order dated 18.12.2015 is allowed. The

Pet u/s 104 No.58/2017, MP No.01/2017 Page 2 of 3
Trial Court is directed to decide the application preferred by the petitioner under
Section 10 of the Guardianship and Wards Act within a period of one month from
the date of receipt of certified copy of the order passed today, as the evidence of
the parties have already been recorded.

Accordingly, the petition is disposed of along with connected MP.

(Alok Aradhe)
Judge
Jammu
21.11.2017
Raj Kumar

Pet u/s 104 No.58/2017, MP No.01/2017 Page 3 of 3

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