The main legal point established in the judgment is the intentional disobedience of court orders and the drastic nature of striking off the defence in cases of repeated violations of visitation rights.

JUDGMENT :

Rule. Rule made returnable forthwith. With the consent of parties, matter is taken up for final hearing.

2. By this petition, petitioner challenges order dated 21.09.2022 passed by the District Judge – 2, Kopergaon on application below Exhibit 236 by which his defence has been struck off. He also challenges the order dated 30.09.2022, by which application filed for recall of order dated 21.09.2022 has been rejected.

3. In the custody battle between petitioner-father and respondent No. 1-mother, an order came to be passed by the District Court on 27th August, 2020 granting visitation rights in favour of the mother on every Wednesday between 11.00 a.m. to 12.00 noon in the Court premises. Later, the order was modified on 05th August, 2022 granting visitation rights to mother from 11.00 a.m. to 01.00 p.m. on each Sunday at Shri Swami Samarth Maharaj Temple, Kopergaon.

4. The mother moved an application for striking off the defence of petitioner on account of repeated violation of the order passed by the Court. The application was allowed on 21.09.2022 and the defence of petitioner was struck off under the provisions of the Order XXXIX Rule 11 of the Code of Civil Procedure, 1908. Petitioner moved an application for recall of that order and for restoration of his defence, which has been rejected by order dated 30th September, 2022 by the District Court.

5. Appearing for petitioner, Mr. Kulkarni the learned counsel would submit that the child is not willing to meet the mother. This is essentially the reason why order granting visitation rights could not be complied with on certain dates. He submits that the matter is required to be referred to a counsellor to gauge child’s inclination to meet mother, rather than striking off petitioner’s defence for technical violation of court’s order. He would submit that child’s wish is paramount and therefore, when the child himself is not willing to meet the mother, the Court ought not to have straightway struck off defence without exploring the possibility of referring the matter to a counsellor. Mr. Kulkarni would further submit that the order striking off the defence is of drastic nature and ought not to have been passed by the Court in the peculiar facts and circumstances of the case. In support of his contention Mr. Kulkarni would rely upon decision of this Court in Kavita Krishnamurti Vs. K. N. Krishnamurti reported in MANU/MH/2331/2014.

6. Per contra, Mrs. Sangit, the learned counsel appearing for the respondent No. 1 opposes the petition. She would submit that there has been repeated violation of the order granting visitation rights by the petitioner and that therefore, the District Court has correctly struck off his defence. She would in particular draw my attention to the observations recorded by the District Court in its order dated 21.01.2021 regarding behaviour of the petitioner in the Court. She relies upon para Nos. 2 to 5 and 8 of that order, which reads thus :

“2. Respondent no. 1 was told at 4.30 p.m. today in clear terms that he should reach his son at home and ask his advocate to remain present for argument on Exh.122. But respondent no. 1 made allegations on the court that this court never told this to him. He further made allegations on the court that the court wants that all the proceeding should happen behind his back thereby indicating that till now all the orders came to be passed by this court behind his back without giving him opportunity of being heard. When this objectionable statement is pointed out to respondent no.1 and he is told that this is going to be recorded, he made arrogant statement that OTHER LANGUAGE(When this statement was recorded, respondent no.1 again created hindrance by stating that he never addressed to court OTHER LANGUAGE thereby making allegations against court that this court is falsely recording those words. The words OTHER LANGUAGE in such arrogant tone and on such a timing gives a feeling to the court that respondent no.1 is threati