IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CMPMO No. 104 of 2018
Decided on : 9.5.2018
.
Ravi Dutt Pathania …..Petitioner.
Versus
Shivani Pathania ….Respondent.
Coram:
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1
For the Petitioner: Mr. K.S. Banyal, Senior Advocate with Mr.
Vijender Katoch, Advocate.
For the Respondent: Mr. K.D.Sood, Senior Advocate with Mr.
Het Ram, Advocate.
Sureshwar Thakur, J (oral)
The relevant portion of the operative part, of, the impugned
order, is, extracted hereinafter:-
“The present Civil Miscellaneous Application has
been filed under Section 151 CPC and Sections 7, 1725 of the Guardians and Wards Act for taking action
against the respondent Ravi Dutt Pathania for disobeying
the order dated 5.10.2017, vide which the custody of
minor child was temporarily ordered to be transferred to
the respondent on every Saturday and the minor was
being handed over to the applicant/respondent on
Monday to join the school and during holidays both the
parties, the respondent/petitioner and applicant/
respondent were ordered to keep the minor for half of the
period of vacation. As per order, the custody of minor
child was handed over on 06.01.2018 to the father, who
has not returned the custody of the child.”
1
Whether reporters of the local papers may be allowed to see the judgment?
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…2…
2. A perusal thereof makes a vivid display, of, a preemptory
.
direction being rendered upon respondent-petitioner herein, to, hand
over the custody, of, the minor child to his mother. The reasons
assigned by the learned District Judge concerned, for, making the
aforesaid direction, is, comprised in the factum of application, for,
modification of an order pronounced, on, 5.10.2017 being sub judice.
3. However, the learned counsel for the petitioner has, with
much vigor, submitted before this Court, that the operative portion of
the impugned order, is, in conflict with the earlier portion thereof,
wherein the learned District Judge has taken a clear view, and, after his
ascertaining the wishes of the minor child, of, his welfare and interest
being optimally, taken care, of, by the petitioner herein.
4. This Court has considered, the aforesaid submission
addressed by the learned counsel, for the petitioner/the father of the
minor child. However, before proceeding to determine the veracity, of
the aforesaid submission, it is also imperative to bear in mind, the
factum, that, the order pronounced on 5.10.2017, only permitted the
petitioner herein, to, retain the custody of the minor child, for, half of
the period of vacation. The aforesaid factum is of utmost importance, as
it, directly devolves upon influences, if any, as may be cast upon the
mind, and, the psyche of the minor child, during, the period of his stay
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with the petitioner herein besides more importantly, of, whether in
.
compliance or not with the order supra recorded on 5.10.2017 the
petitioner herein proceeded to purportedly, legally or illegally retain the
custody of the minor child. However, a reading of the impugned order,
does not, make any disclosure of the aforesaid factum, being borne in
mind, by the District Judge concerned. The effect, of his not, bearing in
mind the aforesaid trite factum also directly impinges upon the factum
of the petitioner, during the purported period, of, his purportedly
retaining any purported illegal custody of the minor child, his
purportedly casting influences upon his mind and psyche, hence,
leading the minor child, to, make a statement adversarial, to his mother.
5. For undoing the aforesaid non application of mind vis-à-vis, the
relevant and germane factum probandum, it is deemed fit, that the
impugned order necessitates, its being quashed and set aside, and it
being remanded, to, the learned District Judge, with a direction, to him,
that after, bearing in mind, the aforesaid facts, his proceeding to
pronounce a fresh order, in, accordance with law, within a period of
three months, also, during, the period whereat the matter is sub judice
before him, the order rendered on 1.5.2018 shall continue.
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“1.5.2018 In the interest of justice, till further
orders, it is directed that the petitioner shall carry
.
the minor child named Vedant, upto Hospital
complex at Tauni Devi, where the respondent is
residing whereat the respondent shall be
permitted to see her minor child. An advance
intimation shall be made by the petitioner about
his visit, to the respondent, and, time thereof shall
be at 4 O’clock, every day, upto 9th May, 2018.
6. It is made clear that prior, to, the learned District Judge
recording any order on merits, he shall make an endeavour, to strike an
amicable settlement inter se the parties at lis, through, the aegis, of, Lok
Adalat.
7. Consequently with directions supra, the matter is remanded
back to the learned District Judge concerned. All pending applications
shall also stand disposed of.
Dasti copy.
9th May, 2018 ( Sureshwar Thakur ),
(mamta/priti) Judge.
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