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2015 Supreme(Del) 4091

DELHI HIGH COURT
Kailash Gambhir, P.S. Teji, JJ.
Soumitra Kumar Nahar - Appellant
Versus
Parul Nahar - Resopndent
MAT. APP. (F.C.) 41/2014 & CM APPL. Nos, 3241 & 8858/2015, 13424, 19093, 19546-19547/2014 & 8925-8926 of 2015
Decided On : 04-09-2015

Advocates:
For the Appellant :Ms. Geeta Luthra, Sr. Advocate with Mr. Attin Shankar Rastogi, Advocate alongwith appellant in person.
For the Respondent:Mr. Salman Khurshied, Sr. Advocate with Mr. Alok Bhachawat, Ms. Swati Jha & Mr. Rajnish ]ha, Advocate’s along with respondent & children in person.

Headnote:

Matrimonial Law - Dispute - Visitation rights - Consent order - Violation of - Appeal - Tenability of the order - Grant of visitation rights to the appellant - Binding effect of the consent order - Due to the matrimonial discord between the parties - Multiple litigations have been faced by the parties - Ad interim mandatory injunction granted to the father in law, as per which the respondent herein was directed to vacate the property of appellants father - Due to problem in visiting rights matter was referred to the high Court Mediation and Conciliation centre - Court directed assistance of a child psychologist may also be taken - Mutual settlement arrived at between the parties are of binding effect - It is not the parties but the children who have shown their reluctance to honour the terms of the settlement with regard to visitation rights agreed upon by their mother and the father - Girl showed her utmost reluctance not to have even a glimpse of her father - Girl cannot be forced into meeting her father because of the sad image that has been etched in her mind - Boy is being of a tender age seemed to be toeing the stand of his sister without having any views of his own - Respondent is directed to comply with the terms of the mutual settlement in so far as the visitation rights of the father to meet boy - Visitation rights to meet the daughter is denied.

JUDGMENT :

Kailash Gambhir, J.:--

1. By way of the present appeal, the appellant has questioned the tenability of the order dated 21st March, 2013 passed by the learned Family Court, Saket, whereby the learned Family Court has declined his request for grant of visitation rights to meet his children and the appellant prays for the grant of visitation rights in terms of the consent order dated 1st March, 2013.

2. The brief facts of the case at hand are as follows, that the appellant and the respondent got married on 10.12.2001 at New Delhi according to Hindu Rites and Ceremonies. That the marriage between the appellant and the respondent was a love marriage. That the minor children Sanjana and Shravan were born out of the wed lock on 24.05.2005 and 10.10.2008 respectively. Due to disharmony between the appellant and the respondent, their marriage culminated in a divorce. That with the ongoing divorce proceedings, the appellant filed an application for visitation rights, which, as per the order dated March 01, 2013 was granted by the Division Bench of this court in FAO (OS) 129/2013 wherein both the parties arrived at certain mutual terms in order to settle the matter. One of the terms of the settlement was with regard to the visitation right of the appellant to meet his children. As per the order dated 1st March, 2013, the respondent had agreed to make available the children to the appellant herein on every Saturday at 10:00 a.m. to be brought back at 10:00 a.m. on the following Sunday. As per the appellant, the respondent is in complete breach of the order dated 1st March, 2013 as she failed to vacate the house of the father of the appellant which led to filing of an application for clarification by the appellant’s father and, thereafter, the consent terms were reiterated on 2nd April, 2013. It is also the case of the appellant that vide order dated 5th April, 2013, a Division Bench of this Court directed the parties to approach the Mediation Centre to facilitate the implementation of the directions only qua visitation rights and while directing so, the Mediation Centre was given the liberty to take assistance of a Child Psychologist. As per the appellant, he had fully complied with all the directions given by the Division Bench as well as the terms of the consent order. The respondent, on the contrary, deliberately violated the consent terms, one of them being to facilitate the meeting of the children with the appellant in terms of the consent order. Due to non-compliance of the terms of the consent order, the appellant had filed an application dated 16th November, 2013 seeking direction to expedite the main proceedings and also to facilitate the visitation rights in terms of the order dated 1st March, 2013 read with order dated 2nd April, 2013.

3. This application moved by the appellant has been dismissed by the learned Family Court and to challenge the legality and correctness of the said order, the appellant has preferred the present appeal.

4. Ms. Geeta Luthra, learned Senior Advocate appearing for the appellant stoutly contended that the impugned order passed by the learned Family Court is in complete disregard of the aforesaid orders passed by the Division Bench of this Court and as per the counsel, the Family Court in fact has exceeded its jurisdiction by rejecting the application of the appellant. Counsel further argued that the impugned order in fact has rendered the appellant completely remediless as the same totally deprives the appellant to meet his children and shower his love and affection on them, in the absence of which the welfare and interest of the minor children shall be adversely affected. Counsel further argues that the learned Family Court has not appreciated the well settled principles of law as enumerated by the Hon’ble Supreme Court time and again that father cannot be deprived of the visitation rights to meet his children. Counsel also argued that the learned Family Court failed to appreciate that it is












































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