Point of Law: Family dispute – custody of child – Petitioner wife challenging the execution of gift deed in favor of minor child - n case respondent herein remarries, the house will remain in continuous ownership of the minor and the petitioner would be the guardian of the minor till the minor attains the age of majority – Challenged to gift deed not maintainable

JUDGMENT :

1. The petitioner has challenged the order dated 16.02.2021, passed by learned Principal District Judge, Baramulla, whereby in execution proceedings under Guardian and Wards Act, the learned trial court has, while rejecting the objection raised by the petitioner herein, directed him to comply with order dated 02.05.2017 passed by the said court within 15 days.

2. Before coming to the instant petition, let me give a brief background of the facts leading to filing of the instant appeal.

3. It appears that the petitioner herein had filed an application under Section 25 of the Guardian and Wards Act before the trial court seeking physical custody of minor son from his former wife, the respondent herein. It appears that during the course of said proceedings, the parties entered into a compromise and the petition was disposed of in terms of the compromise arrived at between the parties and an order came to be passed in this regard by the learned trial court on 02.05.2017. Clause (7) of the compromise settlement arrived at between the parties before the trial court, it appears, has become a bone of contention between the parties. It reads as under:

“7. That it has been agreed by the petitioner that he transfers his house No.234 Section 2 situated at Gulbarg Colony Hyderpora Srinagar by way of gift to minor which has been accepted by the respondent on behalf of the minor. The minor shall be exclusively the owner of the said house. In case respondent remarries, the house will remain in the continuously ownership of the minor, but the petitioner shall be guardian for the property of the minor till the minor attains the majority. He is not permitted to dispose of the said house or create any third party interest in the said house.”

4. It appears that in terms of the afore-quoted covenant of the settlement, the necessary follow up steps were not taken by the petitioner herein which compelled the respondent herein to approach the learned trial court by way of an Execution Petition. To the said Execution Petition, the petitioner had raised an objection with regard to its maintainability as, according to him, the condition No.7 of the agreement is not lawful and that he cannot be compelled and constrained to execute a deed of gift in favour of the minor. It was also urged by the petitioner that if he is compelled to execute a deed of gift in favour of the minor, the same would render him shelter-less. The learned trial court while noticing that other six conditions mentioned in the order dated 02.05.2017 have been complied with by the parties, observed that the objections raised by the petitioner herein to the execution proceedings are without any merit. It was held that Section 43 of the Jammu and Kashmir Guardian and Wards Act specifically empowers the Court to ensure that the order drawn for welfare of the child is complied with by taking recourse to the power as if the matter before the Court is the one under Order 39 Rule 1 & 2 CPC. The learned trial court further held that the petitioner herein has no escape route to show non-compliance of order dated 02.05.2017 and any non-compliance on his part would expose him to disobedience proceedings in terms of Section 43 of the Guardian and Wards Act.

5. I have heard learned counsel for the parties and perused the impugned order as well as order dated 02.05.2017 passed by the learned trial court.

6. Before coming to the merits of this case, it would be apt to notice the extent and scope of jurisdiction vested in the High Court under Article 227 of the Constitution. The Supreme Court in the case of Radhey Shyam & anr. v. Chhabi Nath & Ors, (2009) 5 SCC 616. while considering the scope and extent of jurisdiction of the High Court under Article 227 of the Constitution has held that the said Article vests the High Courts with a power of superintendence which is to be exercised very sparingly to keep tribunals and courts within bounds of their authority. It was further held that under Article