HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR
…
RP no.96/2022
In RFA no.04/2021

Pronounced on: 13.02.2025

…….Petitioner(s)

Through: Mr I. Sofi, Advocate

Versus

……Respondent(s)

Through: None

CORAM:
HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

1. Review of judgement dated 18th October 2022, passed by this Court in

an appeal, RFA no.04/2021, titled as Parvez Ahmad Khan v. Areeb is

sought for.

2. I have learned counsel for parties and considered the matter.

3. The grounds on which review is being sought are: that while passing

judgement under review, appeal has been dismissed on merits whereas

counsel for petitioner argued the case on preliminary issue of

maintainability of appeal in terms of Order dated 19th May 2022; that

appeal was fixed on 30th May 2022, on which date counsel for

respondent was not available and adjournment, sought on his behalf by

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In RFA no.04/2021
 proxy counsel, was granted and the matter was posted for 1st June 2022

for continuation of arguments; that on 1st June 2022, the matter was

argued on maintainability of appeal and case reserved and, thus, main

appeal was not argued at all on merits; that this Court has not decided

the objection vis-à-vis maintainability of appeal and instead decided

main appeal which was not argued on merits at all; that appeal has been

decided without arguing the matter on merits and without hearing

counsel for petitioner on merits which fact is born out from the records

and interim orders, therefore, error and mistake apparent on the record

which require recalling of the order/judgement. Reference has been

made to Union of India v. Sandur Manganese and Iron Ores Ltd to state

that principles of natural justice embody the right to every person to

represent his interests to the court of justice and pronouncing of

judgement which adversely affects the interests of the party to the

proceedings who was not given a change to represent his/its case is

unacceptable under principles of natural justice. It is also stated that

appeal was heard and reserved on maintainability on 1st June 2022 and

while rendering the judgement, this Court has overlooked the interim

orders and instead passed the judgement on merits which has been

apparently passed without hearing the matter on merits.

4. In RFA no.04/2021, review petitioner/appellant sought setting-aside of

the Order dated 26th December 2020, passed by Principal District

Judge, Srinagar, [“Trial Court” for short], deciding five applications,

four filed by review petitioner, and one by respondent. Following

judgement was passed by this Court to decide the appeal:

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1. This Appeal is directed against Order dated 26th December 2020,
passed by Principal District Judge, Srinagar (for short “court
below”), disposing of as many as five applications, four filed by
petitioner and one by respondent.
2. The case set up by appellant is that appellant and respondent
married; out of which respondent gave birth to a male child,
namely, Ahmad, and that marriage did not continue and he
divorced respondent. The minor child was with respondent who
did not allow him to see the child, so he filed an application under
Section 25 of the Guardian and Wards Act, which was disposed
of vide order dated 19th October 2015 with a direction that
respondent would produce the ward in District Mediation Centre,
Srinagar, and leave custody of the ward of appellant, who would
have interaction/interview with the Ward from 1.00 PM to 3.30
PM twice in a month on 1st and 4th Saturday. However, respondent
is said to have not adhered to aforesaid directions and continued
to commit breach and violation thereof, so he filed contempt
petition on 25th April 2016, in which notice was issued to
respondent. During pendency thereof, respondent also filed
application seeking modification of order dated 19th October
2015 on the ground that she had been appointed as Lecturer,
making it difficult for her to produce the ward on two Saturdays
as both the days were working days and the time fixed for
meeting was also creating a lot of trouble in discharging her
duties as she had to leave in the middle of working days. This
application was disposed of vide order dated 8th August 2017,
directing production of ward in a month on 1st and 3rd Saturdays
for meeting and conveyance charge was to be borne by appellant.
It is also contended that appellant also filed an application in
aforesaid contempt petition and sought modification of aforesaid
two orders dated 19th October 2015 and 8th August 2017, by
directing respondent to allow appellant full-fledged meeting with
minor in and outside the four walls of District Mediation Centre
and during interaction of appellant, respondent be directed to
stay away from intimate zone and further his grandparents be also
allowed to interact with the minor child in the District Mediation
Centre. It is also averred that despite orders and directions
passed by the court below, respondent continued to flout the
same. According to appellant, respondent did not implement the
orders of the court below, so he filed second contempt petition,
but the court below is stated to have passed order impugned, of
which he is aggrieved.
3. I have heard learned counsel for parties and considered the
matter.
4. Learned counsel for appellant has stated that impugned order has
been passed at the back of appellant and without hearing him
and that appellant was himself pleadings the case before the
court below and the said case was listed on 11th November 2020,
when the court directed counsel for respondent to file written
arguments and the case was posted for 2nd December 2020.
Counsel for respondent filed written arguments on 2nd December
2020 and the matter was posted for 17th December 2020, on
which date appellant was absent and the court below heard
arguments of counsel for respondent and posted the case for
appropriate orders on 26th December 2020, on which date

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 impugned order came to be passed. It is also contended that
impugned order is not based on facts.
5. Aforesaid submissions of learned counsel for appellant as also
those averments/grounds raised in the memo of appeal are
misconceived. The reason being that impugned order is
comprehensive and takes in its fold all aspects of the matter that
were required for court below to take care of while passing
impugned order. When impugned order is looked into, it does not
suffer from any infirmity as projected in instant appeal. Last but
one paragraph of impugned order is appropriate to be
reproduced, in view of the case set up by appellant, hereunder:
“However, keeping in view the interest and welfare of
the minor and the right of the petitioner, it is directed
that petitioner shall be permitted to meet the child on
the last Friday of every month from 3:00 PM to 4:00
PM in the ADR Centre at Srinagar. Secretary District
Legal Services Authority shall facilitate the visit and all
precautions shall be taken to ensure prevention of
COVID-19 pandemic. The petitioner shall pay the
conveyance charges of Rs.500/- to the respondent for
each visit on the day of meeting itself against proper
receipt. The respondent shall facilitate the same and
shall not cause any hindrance in the interaction. The
petitioner is also advised to bear the expenses of the
education and all related expenses of the child including
the tuition fee etc, so that he can contribute
satisfactorily to the health and education of the child.
However, in case the petitioner ducks to bear expenses,
the respondent shall always be free to pursue the
appropriate legal remedy for recovery of maintenance.”

Perusal of above portion of impugned order would reveal

that court below has given visitation rights to petitioner to have
interaction with his son and pay conveyance charges of Rs.500/-
. The court below has not only enjoined upon respondent to
facilitate interaction of appellant with his son but has also
cautioned respondent not to cause any hindrance in such
interaction. What else could have the court below done and
directed except the above one. In that view of matter impugned
order does not warrant any interference.
6. For the reasons discussed above, the instant appeal is dismissed
with connected CM(s). Interim direction, if any, shall stand
vacated.

5. A three-Judge Bench of the High Court of Delhi in MAT. APP. (F.C.0

126/2019, 2024: DHC: 7994-FB, vide its judgement dated 16th October

2024, has held that orders passed under Section 12 of the Guardian and

Wards Act would be appealable under Section 19 of the Family Courts

Act.

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6. If the appeal, preferred by appellant/review petitioner, for a moment, is

treated maintainable against the order passed by the Trial Court, yet

grounds taken in the appeal cannot be heard saying from appellant/

review petitioner were noncomprehensive and required further

elucidation and elaboration as it would serve no purpose except

protracting the matter, so those grounds are reproduced one-by-one

hereunder, and discussed and decided individually: -

i. First Ground:
The first ground taken by appellant/review petitioner in his

appeal is that impugned order is patently illegal and bad in law.

The impugned order has been passed at the back of the appellant

and without hearing him. It is submitted that the appellant was

himself pleading the case before the trial court and the said case

was listed on 11.11.2020 when the Trial Court directed the

counsel for the respondent to file written arguments. The case

was posted for 02.12.2020. On 02.12.2020 the counsel for

respondent filed written arguments and the case was posted for

17.12.2020. On 17.12.2020, the appellant was absent and the trial

court heard the arguments of the counsel for respondents and

posted the case for appropriate orders for 26.12.2020 and on

26.12.2020, the trial court passed impugned judgement at the

back of appellant.

(a) The above contentions of appellant/review petitioner are

impregnant with accusation against the Trial Court. Such a

plea is un-condonable. Non-appearance of parties could not

be made a reason for not deciding the case(s) as generally it

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 has become a routine to protract matters. Adjournment culture

has been deprecated by the Supreme Court.

(b) The legal maxim ‘justice delayed is justice denied’ echoes

loud and clear in our overburdened judicial system. Millions

of cases are pending in the Courts throughout the India. The

primary reason for huge pendency of cases is either shortage

of judges, lack of infrastructure or procedural delays and

adjournments.

(c) An adjournment refers to the judicial practice of deferring a

scheduled hearing to a later date. Order XVII of the Code of

Civil Procedure envisages rules for the Courts to follow when

faced with adjournment requests. It provides that no

adjournment shall be granted at the request of a party except

where circumstances are beyond their control. Adjournment

after adjournment has become a tool which leads to strategic

delays.

(d) The Supreme Court in M/s Shiv Cotex v. Tirgun Auto P. Ltd

and others, (2011) 9 SCC 678, has made it clear by saying,

“Is the court obliged to give adjournment after adjournment

merely because the stakes are high in the dispute? Should the

court be silent spectator and leave control of the case to a

party to the case who has decided not to take the case

forward?”. The Supreme Court after that proceeded to say, “It

is sad, but true, that the litigants seek - and the courts grant -

adjournments at the drop of the hat. In the cases where the

Judges are little proactive and refuse to accede to the requests

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 of unnecessary adjournments, the litigants deploy all sorts of

methods in protracting the litigation. It is not surprising that

civil disputes drag on and on. The misplaced sympathy and

indulgence by the appellate and revisional courts compound

the malady further. The case in hand is a case of such

misplaced sympathy. It is high time that courts become

sensitive to delays in justice delivery system and realise that

adjournments do dent the efficacy of the judicial process and

if this menace is not controlled adequately, the litigant public

may lose faith in the system sooner than later. The courts,

particularly trial courts, must ensure that on every date of

hearing, effective progress takes place in the suit.” Thereafter

the Supreme Court has also said that no litigant has a right to

abuse the procedure provided in the Code of Civil Procedure

inasmuch as adjournments have grown like cancer corroding

the entire body of justice delivery system. A party to the suit

is not at liberty to proceed with the trial at its leisure and

pleasure and has no right to determine when the evidence

would be let in by it or the matter should be heard. The parties

to suit, whether it is plaintiff or defendant, must cooperate

with the Court in ensuring effective work on the date of

hearing for which the matter has been fixed. If they do not,

they do so at their own peril.

(e) It has been said by the Supreme Court in Noor Mohammad v.

Jetha Nand and another, (2013) 5 SCC 202, “In a democratic

set up, intrinsic and embedded faith in the adjudicatory

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system is of seminal and pivotal concern. Delay gradually

declines the citizenry faith in the system. It is the faith and

faith alone that keeps the system alive. It provides oxygen

constantly. Fragmentation of faith has the effect-potentiality

to bring in a state of cataclysm where justice may become a

casuality. A litigant expects a reasoned verdict from a

temperate Judge but does not intend to and, rightly so, to

guillotine much of time at the altar of reasons. Timely

delivery of justice keeps the faith ingrained and establishes

the sustained stability. Access to speedy justice is regarded as

a human right which is deeply rooted in the foundational

concept of democracy and such a right is not only the creation

of law but also a natural right. This right can be fully ripened

by the requisite commitment of all concerned with the system.

It cannot be regarded as a facet of Utopianism because such a

thought is likely to make the right a mirage losing the

centrality of purpose. Therefore, whoever has a role to play in

the justice dispensation system cannot be allowed to remotely

conceive of a casual approach.” The Supreme court further

went to say that the corrosive effect that adjournments can

have on a litigation and how a Lis can get entangled in the

tentacles of an octopus. The philosophy of justice, the role of

a lawyer and the court, the obligation of a litigant and all

legislative commands, the nobility of the Bench and the Bar,

the ability and efficiency of all concerned and ultimately the

divinity of law are likely to make way for apathy and

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 indifference when delay of the present nature takes place, for

procrastination on the part of anyone destroys the values of

life and creates a catastrophic turbulence in the sanctity of

law. The virtues of adjudication cannot be allowed to be

paralyzed by adjournments and non-demonstration of due

diligence to deal with the matter. One cannot be oblivious to

the feeling necessities of the time. No one can afford to sit in

an ivory tower. Neither a Judge nor a lawyer can ignore “the

total push and pressure of the cosmos”. It is devastating to

expect infinite patience. Change of attitude is the warrant and

command of the day. It has to be kept in mind that the time of

leisure has to be given a decent burial. The sooner it takes

place, the better it is. It is the obligation of the present

generation to march with the time and remind oneself every

moment that rule of law is the centripodal concern and delay

in delineation and disposal of cases injects an artificial virus

and becomes a vitiating element. The unfortunate

characteristics of endemic delays have to be avoided at any

cost. One has to bear in mind that this is the day, this is the

hour and this is the moment, when all soldiers of law fight

from the path.

(f) In Gayathri v. M. Girish (2016) 14 SCC 142, the Supreme

Court has highlighted that litigants pray for adjournment as if

it was their right to seek adjournment on any ground

whatsoever and under any circumstance, displaying a blatant

disregard for the Court proceedings inasmuch as practice of

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 allowing frequent adjournments has become so common that

it has significantly contributed to the backlog of cases.

ii. Second Ground:

The second ground taken by appellant/review petitioner in his

appeal is that appellant was not present even on 26.12.2020. The

appellant was also not present on 17.12.2020, when the trial court

heard the arguments of the counsel for the respondent. The trial

court as such did not hear the appellant nor afforded reasonable

opportunity to make detailed submissions in the light of facts of

the case and written arguments of the parties and the oral

submissions made by the counsel for the respondent. The trial

court has not heard the appellant at all and thus passed the

impugned judgment without hearing him and hearing the counsel

for respondents alone which renders the impugned judgment

patently illegal and bad in law and in violation to principles of

natural justice.

(a) Again, above averments of appellant/review petitioner are

misconceived and specious. It has already been made clear

herein before that the Courts are not mute spectators and leave

control of the case to a party to the case who has decided not

to take the case forward.

(b) In a democratic set up, intrinsic and embedded faith in the

adjudicatory system is of seminal and pivotal concern. Delay

gradually declines the citizenry faith in the system. It is the

faith and faith alone that keeps the system alive. It provides

oxygen constantly. Fragmentation of faith has the effect-

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 potentiality to bring in a state of cataclysm where justice may

become a casualty. A litigant expects a reasoned verdict from

a temperate Judge but does not intend to and, rightly so, to

guillotine much of time at the altar of reasons. Timely

delivery of justice keeps the faith ingrained and establishes

the sustained stability. Access to speedy justice is regarded as

a human right which is deeply rooted in the foundational

concept of democracy and such a right is not only the creation

of law but also a natural right. This right can be fully ripened

by the requisite commitment of all concerned with the system.

It cannot be regarded as a facet of Utopianism because such a

thought is likely to make the right a mirage losing the

centrality of purpose. Therefore, whoever has a role to play in

the justice dispensation system cannot be allowed to remotely

conceive of a casual approach. [Vide: Noor Mohammad v.

Jetha Nand (supra)].

iii. Third Ground:

In this ground appellant/review petitioner states that the trial

court while passing impugned order has held that respondent has

filed objections both to contempt petition of appellant and also

to parenting plan in which respondent refuted application.

Appellant also avers that respondent did not contest contempt

petition nor filed objections in contempt petition nor refuted

statements and contentions of appellant made and averred in

contempt petition. Therefore, it is factually incorrect that

respondent filed objections to contempt petition. This non-

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existent fact renders impugned order bad and reflects non-

application of mind and non-perusal of record by trial court and

thus impugned judgment cannot sustain in the eye of law.

The above contentions, in view of aforesaid discussions,

are absurd and deplorable. It is mentioned in impugned order that

respondent filed her objections both to contempt petition as also

to the ‘parenting plan’ in which she refuted the application firstly

on preliminary objections, i.e., the contents have been

downloaded from the internet as the submissions are vague and

only waste of precious court time and that applicant in order to

harass, humiliate and intimidate respondent filed that application

on false and frivolous grounds. It is also mentioned therein that

applicant/appellant left no stone unturned to harm, injure,

endanger the health safety, life, wellbeing of minor and is least

bothered about welfare and upbringing of minor, more

particularly when applicant/appellant contracted second

marriage and is enjoying luxurious life and never spent quality

time with the minor whereas respondent has not contracted

second marriage and is continuously taking care of minor. As

regards contempt petition, it is mentioned in impugned order that

petition for initiation of contempt proceedings was basically

pending disposal before the court of 1st Additional District Judge,

Srinagar, but later on was transferred from the said court and was

retained in the Trial Court for disposal on the basis of consent of

parties and during pendency of petition, the Trial Court passed

order on 5th November 2019, which had been passed with the

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 consent of the parties directing permitting appellant to meet the

child on 2nd and 4th Friday of every month and respondent was

directed to ensure that she did not intervene at the time of

meeting between appellant and the child. Thereafter parties

sought vacation/modification of order dated 5th November 2019.

Appellant sought cancellation of order dated 5th November 2019.

Respondent sought modification of the said order on the ground

that appellant was harassing her in ADR Centre and prayed

instead of ADR Centre, place of such interaction be kept before

the Trial Court. It was found that no evidence was led by

appellant to show wilful disobedience by respondent.

iv. Fourth Ground:

Here, appellant says that his case in contempt petition was that

respondent did not produce the ward in mediation centre as

directed for interaction of appellant and was flouting the order

time and again. On request of appellant, the trial court vide order

dated 18.02.2020 also directed Incharge Mediation Centre to

furnish its report regarding interaction of appellant with the ward.

The trial court did not wait for the said report at all and passed

impugned judgment. According to appellant, aforesaid report

would have clinched the issue as to whether the orders of the trial

court regarding interaction of ward with appellant are being

complied with or not and this was the evidence of the appellant

coupled with the fact that the respondent did not rebut the

allegations of the appellant made by him in the contempt petition

nor filed any objections to it. The trial court ought to have waited

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 for the said report of mediation centre for effective disposal of

the case which the trial court did not and passed impugned order,

which is not based on the record nor does exist int eh record of

the trial court.

Above submissions are exaggerative and absurd.

It is made clear here that the Trial Court is within its

powers to get its orders implemented in letter and spirit as and

when it finds non-implementation or disobedience of its orders.

The Trial Court, as pointed out herein before, has discussed all

facts and circumstances of the case.

v. Fifth Ground:

In this ground taken by appellant in his appeal, he would contend

that he had sought information of attendance record of

respondent and ward at his own level from Mediation Centre

under which information/material was filed by him before the

trial court and which record was filed by him as annexure with

his main application and which record was very much part of the

said application and thus was available on the records of the trial

court. The said record substantiated the case of appellant that

respondent was not producing the ward on the dates fixed by the

trial court and incharge mediation centre had furnished the

details of dates on which respondent had to produce the child but

she did not produce. The trial court did not take into

consideration the said information nor has considered the said

record which also renders impugned order not only bad in law

but perverse.

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 The above claims of appellants, when looked into with the

impugned orders and observations made therein by the trial

court, appear to be larger-than-life. It has been found by the Trial

court that respondent filed an application for maintenance of

minor which was being resisted by appellant tooth and nail and

that petitioner/appellant ought to have paid maintenance and

other expenses of the child without any legal battle and that the

Trial Court also advised appellant not to engage respondent or

child in legal proceedings for recovery of maintenance as

litigation wastes the time of parties and also traps them in a battle

which can be avoided. These observations and sayings of the

Trial Court cannot be said to be bad in law and perverse.

vi. Sixth Ground:

Appellant says that Trial Court passed impugned judgement on

the ground that child/ward was brought before the said court, he

refused to talk to appellant, cried and wept and demonstrated

fear. Appellant with respects submits that the said statement of

the trial court is against the record. The ward was brought before

the trial court only once, i.e., on 16.02.2019 when the ward met

the appellant and interacted with him calmly and to the

satisfaction of one another. Thereafter the ward was not produced

before the trial court at any point of time nor the said fact is born

out from the record. Therefore, the impugned judgement of the

trial court is patently based on non-existent facts and against the

records which renders the impugned judgment void and illegal.

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 The above contentions are belligerent and baseless.

Impugned judgement, on its bare perusal, has been passed

articulately by the Trial Court.

vii. Seventh Ground:

In this ground, it is submitted by appellant that while

passing impugned order, the trial court has said that appellant is

not paying maintenance of the ward and is resisting the

application. The said observations of the court below are against

the record and facts and is not supported by any record and

material. The application for maintenance was filed on behalf of

the ward which was allowed and an amount of Rs.2000/- was

fixed as monthly maintenance which appellant is regularly

paying without any default. The respondent later on filed an

application for enhancement of maintenance to the tune of

Rs.20,000/- per month which the appellant is resisting on the

ground that eth said amount claimed is exorbitant keeping in

view his status, income, other liabilities and therefore is resisting

the claim of Rs.20,000/- as monthly maintenance for the ward.

The court below has accepted the objections of the respondent

that appellant is not paying the maintenance which averment is

not supported by any material. Similarly the trial court has

accepted the contention of respondent that appellant is resisting

the application for maintenance which also is not in its true

perspective. The basis for passing impugned order being without

any supporting material, render the same illegal and bad in law.

a) Above contentions of appellant are based on contradictions.

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 b) At one place, appellant says that Trial court was incorrect in

saying that he did not resist maintenance and at another place,

he himself admits that he resisted enhanced maintenance

sought for by respondent for minor.

viii. Eighth Ground:

The court below has rejected the prayer of parenting plan of

appellant on the ground that appellant is talking high about

parenting plan but is not paying the maintenance of the child and

the parenting plan cannot be implemented in isolation. The

appellant submits that it is incorrect that the appellant is not

paying the maintenance in favour of the ward as awarded by the

court of competent jurisdiction and there is no evidence on record

in support of the said finding of the trial court. Secondly the

respondent has already filed an application for enhancement of

maintenance of the ward which is pending disposal before the

court. The court cannot reject the application of parenting plan

of the appellant ton the aforesaid sole non-existent ground. The

court has to see the welfare of the child and un-interfered

interaction of the child/ward with father for which the apex court

has laid down the guidelines in the form of parenting plan. The

trial court has miserably failed to consider the same and rejected

the same on non-existent ground alleged by the respondent that

too without any supporting material thereto on record which

render impugned order patently illegal and against law and

judgement of the apex court. The impugned order is patently

against the interests of ward and his welfare. The impugned order

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 in effect will alienate the ward from appellant which is the object

of respondent. The appellant has been repeatedly approaching

the court to allow him to have smooth interaction with the ward

that too as directed by the court and the trial court instead of

implementing its own directions has been blaming the appellant

rather than respondent who has miserably failed to comply the

direction of the court from day one.

a) The above averments are again contradictory.

b) It is very much in terms of impugned order that the trial court

has directed that petitioner/appellant shall be permitted to

meet the child on last Friday of every month from 3.00 PM to

4.00 PM in ADR Centre at Srinagar and Secretary, District

Legal Services Authority has been asked to facilitate the visit.

In terms of impugned order, appellant has been directed to

pay conveyance charges of rs.500/- to the respondent for each

visit on the day of meeting itself against proper receipt.

Appellant is bound to pay the said amount of Rs.500/- in

terms of impugned order.

ix. Nineth Ground:

The Trial Court has held that the ward does not want to see

and have interaction with appellant as he refused to do so and

wept and cried and demonstrated fear when he was brough tin

the court. The finding of the trial court is without any basis and

not supported by record. The appellant has also submitted that

the finding of trial court that appellant has chosen the path of

litigation instead of reconciliation and it has affected the tender

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age of child who cannot be forced to act the way the father wants

him to be, is patently arbitrary and not fair. Appellant has been

before the court to allow him to have visitation rights and

interaction and meetings with his own son and the court passed

the orders from time to time and allowed appellant to have

meeting and interaction with the ward twice in a month and this

order is not being implement by respondent. The appellant has

right to knock the doors of the court for implementation of its

own orders and to enforce rights to meet the son. The trial court,

it appears, wants appellant to give up his right to see child and

have meetings and interaction with the ward/son and to enforce

the court direction instead of discharging its duties to see that the

court orders are implemented and interests of the ward are also

protected and he is allowed to meet his father. The court below

has failed to consider that not allowing the father to meet the

child is a violation to his rights and the rights of the father and

thus has exceeded its jurisdiction by passing impugned order. To

deny the father to have meeting with the son and have regular

interactions with him, will alienate the child from the father

which is the objection of the respondent and that is why she does

not produce the child on the dates fixed. The approach of the trial

court is against law and interest of the ward and appellant.

Whenever the ward was allowed to have interaction with

appellant be that in the court room on 16.02.2019 or in the

mediation centre, the ward was very happy and enjoyed the

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 meeting with the appellant. This fact is born out from

photographs taken while meeting the ward in the court premises.

a) Yet again, above contentions are absurd. It is by virtue of

impugned order that respondent has been directed to produce

the ward before the Mediation Centre to have meeting with

appellant.

x. Tenth Ground:

The court below while passing impugned order has dismissed

application for contempt/enforcement of orders. The trial court

while dismissing application has held mere absence of

respondent cannot assume wilful disobedience of the court

passed and that respondent is a working lady and the ward is a

minor, of the age of innocence, who has to be persuaded by

mother to accompany her to meet appellant whom the child is

unwilling to meet and similar other observations have also been

made by the Trial Court in the said judgment. The said finding is

also not supported by record nor pleaded nor proved by

respondent and non-existent and unsupported findings makes it

clear that impugned order is arbitrary, against the record and

cannot sustain in the eye of law.

a) The contentions, in view of discussions already made

hereinbefore, are hollow.

b) Impugned order reveals that the Trial Court did not heard only

counsel for parties but parties in person as well. The Trial

Court had made efforts to persuade parties to evolve

consensus with regard to disposal of application as well as

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 visitation rights of the child, but Trial court found that parties

after falling apart as husband and wife, post dissolution of the

marriage, were still not in a position to reconcile with regard

to the issues raised in the application. The Trial Court

thereafter proceeded to point out that appellant has already

married and is living with his second wife along with his new

born children and the ward in the instant case is living with

mother and is studying in a leading private school known as

Delhi Public School and at that moment expenses regarding

fee, uniform, tuition fee and all other expenses of the child

were being borne by respondent and she in her objections has

stated that she will never marry and will dedicate herself to

the growth and development of the child.

c) The Trial Court also found that when the child was brought

before it, he refused to talk to his father, cried and wept and

demonstrated fear. It is worthwhile to mention here that the

Trial Court has even mentioned that appellant is father of

child and in his growth and development, the role of father is

very important but the child is in the custody of mother and

must be under an overwhelming influence of mother through

in terms of order dated 5th November 2019, parties were

advised to ensure that positive image of parents was created

in the mind of the child including appellant but as ill luck

would have it, the child has never been in the custody of

appellant as he has chosen the path of litigation instead of

reconciliation and this situation has affected tender age of

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 child who cannot be forced at that stage to act the way his

father wanted him to be and that his innocence has to be

preserved and slowly and gradually the child is to be

motivated towards petitioner/appellant in his own interest.

This, according to the Trial Court, is also causing hardships

in ensuring the smooth visitation rights.

xi. Eleventh Ground:

The Trial Court has self-created the finding that because

of Covid-19, it might not be possible for mother to bring the child

physically in mediation centre twice or thrice in a month, and that

it is not so pleaded in the objections by the respondent and the

trial court cannot carve out a different case for respondent and

justify her non-compliance of court directions.

a) The above contentions of appellant are misconceived.

Impugned order itself has been passed during contagious

COVID-19. Thus, the Trial Court has rightly taken everything

in view particularly observation of COVID-19 precautions.

xii. Twelfth Ground:

The Trial Court has also modified earlier orders about meeting

the child twice in a month. The said modification is self-created

by the trial court and was not prayed for by any of the parties.

The trial court has exceeded its jurisdiction that too on baseless

and self-created reasons not supported by pleadings and

evidence.

a) These averments, having regard to discussion made supra, are

baseless. The Trial Court was within its powers to make

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 modifications or alterations of the orders which it, having

regard to case set up by the parties, thought appropriate.

xiii. Thirteenth Ground:

The Trial Court has directed that the meeting and interaction

be made in mediation centre and has not considered the

submissions of the appellant that the respondent is creating

problems there while meeting the child whenever he is brought

there and is off and on interfering and making hue and cry and is

not allowing the appellant to meet the ward separately in a

separate room in isolation to the respondent and again has

referred the parties to mediation centre which in the given facts

and circumstances is bad in law. The trial court on one hand

holds that the parties have levelled allegations and counter

allegations against each other during meeting in mediation centre

and on the other hand has again referred the parties there who

have no separate arrangement and enforcement agency to allow

the father to meet the son. On one hand the trial court modifies

the order on this reason and on the other hand again directs the

parties to the mediation centre for meeting which is contradictory

and unrealistic. Respondent also filed an application for

modification with the prayer that smooth meeting is not possible

in the mediation centre and prayed that the meeting of the ward

with appellant be fixed in the court itself. This application of

respondent supported the case of the appellant that meeting with

ward smoothly and without any interference of respondent is not

possible in mediation centre but still the trial court directed the

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 parties for interaction of ward in mediation centre which patently

reflets non-application of mind of the trial court.

a) Above assertions are unfounded.

b) All that has been done by the Trial Court in terms of

impugned order does not warrant for any interference having

regard to the fact that impugned order is comprehensive and

verbose.

c) There is nothing wrong in the observations and directions

made by the Trial Court.

xiv. Fourteenth Ground:

Application of respondent to modify place of meeting

supported the cause of appellant qua parenting plan to allow

meeting of appellant with ward in the school where there will be

no interference of respondent but still the trial court has rejected

parental plan of appellant which renders the impugned order bad

in law.

a) Five applications were pending before the Trial Court. Four

applications were of appellant. One application was that of

respondent. Appellant sought initiation of contempt

proceedings against respondent for disobeying the orders of

the Trial Court. Objections to the applications for contempt

and parenting plan were filed by respondent, in which she

took preliminary objection, which was that contents had been

downloaded from internet as the submissions were vague and

appellant in order to harass, humiliate and intimidate

respondent had filed application on false and frivolous

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 grounds. It was also alleged by respondent that appellant was

least bothered about welfare and upbringing of minor child

because he had never proved to be a good father, more

particularly when he contracted second marriage and is

enjoying his luxurious life and has never spent quality time

with minor and he never saw the minor child muchless paying

single penny for maintenance of minor. It was also alleged by

respondent in her objections that appellant has committed

mental and physical torture and had emotionally and

economically abused the minor by one way or the other and

on the other hand respondent has not contracted second

marriage and is continuously taking care of the minor. It is

also alleged by respondent in her objections that appellant has

not even paid conveyance charges to minor in mediation

centre which shows the character of appellant.

b) It was found by the Trial Court that basically contempt

petition as pending before the court of 1st Additional District

Judge, Srinagar, but later on it was transferred to the Trial

Court and during its pendency, the Trial Court passed an order

dated 5th November 2019, vide which it was that appellant

would be permitted to meet the child on 2nd and 4th Friday of

every month from 3.00 PM to 4.30 PM and respondent was

directed that she would not intervene at the time of meeting

between appellant and child. It is worthwhile to mention here

that even the Trial Court went further to say that child was

expected to love both parents as both are important for his

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 growth and development and that the parties might not love

each other, but for the best interest of the child, parties should

allow one another to equally contribute to the growth and

development of the child. The Trial Court expected that the

order would be complied with in letter and spirit. The

modification application was accordingly disposed of.

c) Both the parties preferred applications for vacation/

modification of Trial court order dated 5th November 2019.

Appellant sought cancellation of the aforesaid order and

sought passing of judgement according to parenting plan. In

her application, respondent prayed for modification of the

order dated 5th November 2019 on the ground that appellant

was harassing her in ADR Centre and prayed that instead of

ADR Centre, place of such interaction be kept before the Trial

Court.

d) It was also found by Trial Court that the court of 1st Additional

District Judge, Srinagar, vide order dated 19th October 2015

allowed application of appellant for visitation rights, by

which respondent was directed to produce ward in District

Mediation Centre, District Court, Sanatghar, Srinagar, and

leave the custody of ward to appellant, who would have

interaction/ interview with the ward from 1.00 PM to 3.30 PM

twice in a month on 1st and 4th Saturday. The said order was

kept in force for a period of one year only and thereafter the

as parties could have sought alteration/amendment/

modification of the said order, if they chose so.

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e) It was also found by the Trial Court from the record that

respondent sought modification of order dated 19th October

2015, which, in view of consensual statement made at Bar by

the parties, was allowed vide order dated 8 th August 2017,

with a direction that father would have interaction/interview

with the ward twice in the month on 1st and 3rd Saturday.

f) Appellant alleged disobedience of the orders of the court of

1st Additional District Judge, Srinagar, by respondent.

g) Perusal of impugned order passed by the Trial court would

reveals that Trial Court had tried its best to persuade the

parties to evolve the consensus with regard to disposal of

applications, but parties remained impassive. Thereafter the

Trial Court proceeded to say that appellant has moved in his

life as he has contracted second marriage and is living with

his second wife along with new born children, whereas the

ward is living with the mother and she has not contracted

second marriage as according to her she will never marry and

will dedicate herself to the growth and development of child.

h) The Trial Court has also found that petitioner has not led any

evidence to show that there was any wilful disobedience on

the part of respondent to comply the orders. It had also been

ascertained by the Trial Court that as and when respondent

brought child, the meeting was not smooth and that parties

have levelled allegations and counter allegations against each

other during the meeting and that it impacts upon the psyche

of child which is reflected from the fact that when the Trial

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 Court asked the child to talk to his father and to be in his lap,

he started crying, weeping and wailing being under severe

fear psychosis.

xv. Fifteenth Ground:

Order impugned as a whole is against records, facts and

pleadings. The trial court has carved out a different case in

absence of pleadings and records and thereby exceeded its

jurisdiction. The trial court has also not recorded any reason that

too valid one to reject application of appellant and prayers made

therein. The trial court has also not considered the submissions

of the appellant that respondent is also not allowing smooth

meeting of the ward with him and that respondent also does not

comply the directions of the court which has contained him to

approach the court with one after another applications. The trial

court has also ignored that fact to save the relations of appellant

with the ward and ensure that it become closer by allowing the

appellant to meet the ward in free and un-interfered atmosphere.

Respondent herself had also prayed that smooth meeting of ward

with appellant is not possible in mediation centre. The trial court

ought to have in such circumstances allowed the appellant to

meet the ward in school or as per parenting plan which the trial

court has not done.

a) These assertions of appellant are baseless.

b) I have gone through impugned order. It does not suffer from

any infirmity. Appellant’s contentions in the appeal are

repetitive and exaggerated. It is on the basis of the case set up

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 by both the parties that the Trial court has passed order

impugned. All that has done by the Trial Court in terms of

impugned order does not call for any interference as is being

hammer and tongs sought for by appellant. There is no

infirmness or illegality, as alleged by appellant, in impugned

order.

xvi. Sixteenth Ground:

The Trial Court without justification and prayer of any

party has enhanced the conveyance charges of its own which is

patently illegal and bad in law. Respondent at many occasions

did not accept the conveyance charges from appellant for mala

fide consideration to project that appellant is not complying the

directions of the Court. Fact of the matter is that appellant always

sees that the orders of the trial court in all respects are

implemented but respondent is regular default of the same.

a) These averments are without any basis and, as such, specious.

b) The Trial Court has been right and correct in fixing Rs.500/-

as conveyance charge and same does not need to be modified

at the mere asking of appellant.

c) The contention of appellant that respondent was not receiving

conveyance charges, is a sham contention.

d) It is made clear here that as and when respondent declines to

receive conveyance charges, appellant shall be at liberty to

deposit conveyance charges before the Trial Court, which

shall be released by the Trial Court in favour of respondent.

xvii. Seventeenth Ground:

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The Trial Court has not considered written arguments of

appellant nor heard him in person which amounts to denial of

justice to appellant.

a) Again, these contentions are over-exaggerated. This ground

has been fully answered, deliberated upon and decided by

this Court in Fourteenth Ground.

b) The Trial Court, as noted above, found that learned 1st

Additional District Judge, Srinagar, by virtue of its order

dated 19th October 2015, had allowed appellant’s application

for visitation rights. In terms thereof, respondent was

directed to produce ward in District Mediation Centre,

District Court, Sanatghar, Srinagar, and leave the custody of

ward to appellant, who would have interaction/ interview

with the ward from 1.00 PM to 3.30 PM twice in a month on

1st and 4th Saturday. However, the said order was kept in

force for a period of one year only as parties were given

liberty to seek its alteration/amendment/ modification. The

Trial Court also found that respondent was seeking

modification of order dated 19th October 2015. The said

application was by virtue of order dated 8th August 2017

allowed as there was consensus between the parties and it

was directed that father would have interaction/interview

with the ward twice in the month on 1st and 3rd Saturday. It

was also found by Trial court that appellant did not lead any

evidence to show non-compliance of orders by respondent.

The Trial Court also viewed the parties disinclined to remain

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 calm and composed during interactions, causing fear

psychosis to the ward, and in order to address the issue

keeping in view the welfare of the child, the Trial Court

found that frequent visitation rights twice or thrice in a month

at that stage was not in the best interest and welfare of the

child as he was in the state of fear coupled with strained

relations between parents. However, the Trial Court

immediately thereafter said appellant being father of the

child could not be deprived of visitation rights because

balance was to be struck between rights of father and welfare

of child. It was in view of COVID-19 that instead of twice or

thrice in a month, the Trial Court directed respondent to bring

the child on the last Friday of every month in ADR Centre

Srinagar.

c) Impugned order in clear cut terms shows that respondent has

been directed to facilitate meeting of appellant with his son

and shall not cause any hindrance in the interaction.

d) There is an advice, and not a direction, given by the Trial

Court to petitioner to bear the education and all related

expenses of the child including tuition fee etc. so that he can

contribute satisfactorily to the health and education of the

child. This advice of the Trial Court cannot be said to be

wrong, incorrect or illegal.

7. Having regard to all that has been said above, the Trial Court while

rendering impugned order has taken note of all aspects of the matter

and as a consequence of which, it is reiterated that appeal is dismissed

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 as has been so done by this Court vide judgement dated 18th October

2022.

8. Based on the contexts and discussions made, review petition is also

dismissed with costs of Rs.20,000/- to be deposited by appellant/

review petitioner within one month from today. In the event he fails to

do so, Registry shall take all steps for its recovery.

9. It may not be out of place to make a mention that it appears that this

Court while rendering the judgement dated 18th October 2022 did not

stare at the cause-title of the appeal styled by appellant as Parvez

Ahmad Khan v. Areeb (Divorcee). However, while perusing Review

Petition, this Court has found that the expression “Divorcee” has been

attached and used by appellant/review petitioner with the name of

respondent, which is unbecoming of and reflects his mindset.

If appellant/review petitioner has used this word/expression of

“Divorcee” against the name of respondent, then he should have also

used the word/expression “Divorcer” against his name. It is in view of

this fact that the aforesaid expression/word used by appellant/review

petitioner against the name of respondent has not been mentioned/

typed in cause-title of this judgement.

It is very painful to see that how a woman, even as on today, is

being treated.

If a woman is being labelled and shown as “Divorcee”, as if it is

her Surname/Caste, then a man, who divorces his wife, is also to be

called and suffixed as “Divorcer”, which, however, would be a bad

practice. Such a practice should be stopped rather crushed. And

henceforth if any motion/petition/appeal indicates and reflects in its

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 cause-title the word “Divorcee”, against the name of a woman, such a

motion / petition/appeal should not be diarised or registered muchless

entertained.

10.To stop such a practice, a circular-instruction is required to be issued,

instructing that if any motion/petition/appeal is found to have the cause-

title with the word/expression “Divorcee” against the name of woman,

such a petition/motion/appeal should not be diarized/registered. Such

instructions should also be issued/transmitted to the Subordinate

Courts.

Registrar Judicial of this Court is directed to place this judgement

before Hon’ble the Chief Justice for passing of kind orders and issuance

of circular instructions, in view of above.

(Vinod Chatterji Koul)

Judge
Srinagar
13.02.2025
Ajaz Ahmad, Secretary
Whether approved for reporting? Yes/no.

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