Quashed

Rajeev Gupta v. Sangeeta Gupta

J&K HC11 Aug 2021OW104/38/2016

Case brief

AI extract

What is this about?

The Single Judge set aside an impugned order of the trial court which framed the subject matter of the order rather than enforcing custody arrangements. The court directed the trial court to reconsider the application under Section 43(4) of the Guardians and Wards Act regarding execution of orders.

What did the court decide?

Impugned order set aside; trial court directed to revisit application under Section 43(4) Guardians and Wards Act.

Rajeev Gupta Vs Sangeeta Gupta — Child Custody and Guardianship | J&K HC (2021)

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Serial No. 234

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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OW104 No. 38/2016 IA No. 1/2016

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Rajeev Gupta …Appellant(s)/Petitioner(s)

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Through:- Mrs. Surinder Kour, Sr. Advocate with Assisting Counsel.

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v/s

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Sangeeta Gupta …Respondent(s)

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Through:- None.

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Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

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ORDER

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1. The petitioner has invoked the supervisory jurisdiction of this Court in the instant petition while throwing challenge to order dated 19.03.2016 passed by the Court of Additional District Judge (Matrimonial Cases), Jammu in case titled as ‘ Rajeev Gupta v/s Sangeeta Gupta’ .

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2. According to the learned counsel for the petitioner the petition under Section 25 read with Section 12 of Guardians and Wards Act came to be filed by the petitioner for returning the custody of the minor children claimed under the custody of the respondent as also for grant of interlocutory order for production of minor and interim protection of his person and property. According to the learned counsel in terms of order dated 04.12.2012, the petitioner was allowed to meet the minor children on

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OW104 No. 38/2016

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alternate Sunday i.e. from 3 P.M. to 6 P.M. in winter and from 4 P.M. to 7 P.M. in summers. The petitioner was allowed to take the children from the house of respondent and drop them back on the scheduled time. According to the learned counsel for the petitioner the order dated 04.12.2012 was challenged by the respondent before this Court by way of an appeal being CIMA No. 500/2012 which, however, came to be dismissed on 20.12.2012. A petition under Section 104 of the Constitution of J&K is also stated to have been filed by the respondent being No. 64/2012 which, however, came to be withdrawn on 05.03.2013.

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3. According to the learned counsel for the petitioner during the pendency of the petition before the court below, an order came to be passed on 11.11.2013, providing therein that the children are not willing to meet the father. The said order is stated to have been questioned by the petitioner in a revision petition before this Court being No. 83/2013 wherein while disposing of the same, this Court on 18.12.2014 allowed the petitioner to meet the minor children in terms of the arrangement made by the court below directing the court below to execute the order and ensure that the petitioner meets the minor children. It has also been provided in the order that the court below shall ensure that the minor children are produced before it on 29.12.2014 by the mother and that in case, there is any difficulty in enforcing the order, the assistance of the police may be availed.

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4. According to the learned counsel the children were not produced before the court below on 29.12.2014 in compliance to the order passed by this Court compelling the petitioner to file an application before

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3 OW104 No. 38/2016

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the court below for implementation of the order passed by this Court on 18.12.2014 as also for execution of initial order passed by the court below on 04.12.2012.

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5. According to the learned counsel the court below passed an order on 19.03.2016 while disposing of the application of the petitioner providing therein that the non-applicant-mother shall make all endeavours to persuade the children to have meeting/interaction with the father and also provided that the petitioner shall create comfortable, conducive and calm atmosphere during his meeting with the minor children. This order is being questioned by the petitioner inter-alia on the ground that the court below was not required to have passed such an order in presence of the order passed by

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this Court in the revision petition dated 18.12.2014.

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6. According to the learned counsel the trial court could have

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neither made the observation that the respondent-mother shall make endeavours to persuade the children to have a meeting/interaction of the petitioner with the children nor could have directed the petitioner herein to create a comfortable, conducive and calm atmosphere during his meeting with the minor children.

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7. According to learned counsel, the court below instead of passing the impugned order ought to have taken recourse to Section 43(4) of the Guardians and Wards Act and enforced the orders passed by it as also passed by this Court in the civil revision supra in the same manner like that of an injunction granted under Order 39 Rule 1 and 2 CPC.

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4 OW104 No. 38/2016

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8. According to the learned counsel the trial court erred in disposing of the application in terms of the impugned order while making the observations supra.

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9. There appears to be substance in the submission made by the learned counsel for the petitioner. The court below admittedly has fallen in error while overlooking the provision as contained in Section 43(4) of the Guardians and Wards Act relating to the enforcement of orders passed by it, in respect whereof disobedience is complained of. The order thus, is not

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sustainable and is set-aside.

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10. The trial court is directed to re-visit and re-consider the application filed by the petitioner for execution / enforcement of order passed by it on 04.12.2012 read with order dated 18.12.2014 passed by this Court keeping in view the provision of Section 43(4) of the Guardians and Wards Act. It goes without saying that before proceedings to pass any fresh order, the court below shall also afford an opportunity of hearing to the respondents.

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11. Disposed of .

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(JAVED IQBAL WANI) JUDGE

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Jammu
11.08.2021
SUNIL-I
	Whether the order is speaking?	: Yes/No
	Whether the order is reportable?	: Yes/No

Rajeev Gupta v. Sangeeta Gupta

Case brief

What is this about?

What did the court decide?

Rajeev Gupta v. Sangeeta Gupta

Case brief

What is this about?

What did the court decide?

What the court decided

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