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Varun Arora vs Jyoti Arora on 2 February, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

Pet u/s 104 No.99/2015
MP No.3/2015, 2/2017 and
MP No.1/2015
Date of order: 02.02.2018
Varun Arora
v.
Jyoti Arora
Coram:
Hon’ble Mr Justice Tashi Rabstan, Judge

Appearance:
For petitioner(s): Mr. D.C.Raina, Sr. Advocate with Mr. Anuj Dewan Raina, Advocate
For respondent(s): Mr. Sunil Sethi, Sr. Advocate with Mr. Ankesh Chandel, Advocate

Whether approved for reporting? Yes/No

1. Petitioner through the medium of instant petition, filed under and in terms
of Section 104 of the Constitution of the Jammu and Kashmir, invokes
jurisdiction of this Court for setting aside order dated 25.05.2015, passed
by learned Additional District Judge (Matrimonial Cases), Jammu, (for
brevity “Trial Court”) in case titled as Varun Arora v. Jyoti Arora
(hereinafter for short as “impugned order”) by virtue of which, prayer of
petitioner for interim custody of the child, namely, Jishan, on every
Saturday and Sunday and other holidays and days of religious
importance, has been declined. Petitioner‟s next prayer is a direction in
the name of respondent to handover interim custody of minor child on
every Saturday and Sunday as well as on Holidays i.e. Baisakhi, Holi and
Diwali etcetera.

2. Petitioner has preferred a petition under Section 25 of Guardian and
Wards Act, for grant of custody of minor son, namely, Jishan, of the
parties before learned Trial Court. Respondent has filed objections and

Pet.u/s 104 No.99/2015 Page 1 of 4
resisted the petition. Learned Trial Court vide order dated 25.05.2015 has,
while declining petitioner‟s request for grant of interim custody of his
minor son on every Saturday and Sunday and on holidays and special
occasions such as Baisahki, Holi, Diwali etcetera, given him a right to
have meeting and interaction with his minor child and to shower his love
and affection on him and accordingly petitioner was granted visitation
rights to have meeting and interaction with his minor child for three hours
fortnightly on the first and third Sunday of every month in any place
convenient to both parties till disposal of main petition under Section 25
of Guardian and Wards Act. It is this order, which is called-in-question in
the present petition on the grounds set out in it.

3. Heard learned counsel for the parties and perused the record.

4. Petitioner is precisely aggrieved of order dated 25.05.2015 passed by
learned Additional District Judge, Matrimonial Cases, Jammu, by virtue
of which prayer for interim custody of minor child on every Saturday and
Sunday and other holidays and days of religious importance, has been
declined, on the ground that respondent has not proved to be a good
mother and that grandparents of minor child have made number of
investments for the care of the minor child and minor child was admitted
in a good school. In support of his contention, petitioner has placed on
record the transcript of conversation between petitioner and minor child,
and also conversations between petitioner and respondent and some third
person which have been reproduced in the main petition for grant of
custody.

5. Respondent on the contrary has objected and resisted the claim of
petitioner on technical grounds: that present petition is not maintainable
as there is no legal infirmity in the order impugned; that petitioner and his
family members were dowry hungry people; that she was thrown out of
her matrimonial home on 01.12.2014; that minor child was illegally

Pet.u/s 104 No.99/2015 Page 2 of 4
retained by petitioner and she was compelled to get the custody of minor
son from petitioner and his family members through SHO concerned.

6. Qua the contention of respondent that petition is not maintainable as there
is no legal infirmity in the order, the settled position of law is that
petitioner is natural guardian of minor son and therefore, he has every
right to interim custody of minor child, so that minor child is not
alienated from his father. The minor child requires love, care and
affection of both parents and for overall development and welfare of a
child it is always necessary that though the spouses may be fighting and
litigating against each other, but, nonetheless the child should not be used
as a tool for satisfaction of their respective egos. The Courts are always
concerned with the welfare of minor child and the technicalities have no
role to play while adjudicating disputes relating to minor child and the
sole concern of the Court is to see the welfare of minor child. This Court
vide order dated 01.07.2015 directed that petitioner would have visitation
rights to interact with his minor child on every Sunday by 9.00 AM with
further direction to petitioner to deliver back the custody of minor to
respondent by 7.00 PM and during the pendency of this petition, minor
child had even met petitioner at Wave Malls.

7. The matters pertaining to custody of the minor welfare and interest of
child are to be given a paramount importance. [Vide: Tatineni Mayuri v.
Edara Baldev 2016 (13) SCC 377]

8. Respondent has never challenged the order impugned passed by learned
Additional District Judge Matrimonial Cases, Jammu. The visitation
rights of three hours fortnightly granted by the Court below are on shorter
side and it would be in the welfare of the minor child that he interacts
with his father more frequently, so that he is not isolated and remain in
regular contact with the father. The contention of petitioner that
respondent has proved to be a bad mother cannot be considered at this

Pet.u/s 104 No.99/2015 Page 3 of 4
stage and it would be in the fitness of things as well as for the welfare of
minor child that the arrangement made by this Court on 01.07.2015
remains in operation till the matter is completely adjudicated upon by the
Trial Court. The parties shall be at liberty to approach the Trial Court
seeking any modification or alteration of the order in the event of change
of circumstances. The Trial Court is directed to dispose of the matter as
expeditiously as possible preferably within a period of three months.

9. Disposed of as above along with connected MP(s).

(Tashi Rabstan)
Judge
Jammu
02.02.2018
„Madan‟

Pet.u/s 104 No.99/2015 Page 4 of 4

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