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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
Javed Iqbal Wani, J.
Mudassir Majeed – Petitioner
Versus
Irtifa Ayoub – Respondent
CR No. 10 of 2021 & CM Nos. 6966, 1104, 1105, 1335 & 1336 of 2021
Decided On : 01-10-2021
Audi Alteram Partem - Custody of Minor Children - Guardians and Wards Act, 1890, Section 25 - The impugned order permits the applicant/respondent to have physical visitation with her minor children, twice a week on Saturday and Sunday from 2 pm to 5.30 pm and on Wednesday from 5 pm to 7 pm. The impugned order admittedly, has been passed as a temporary measure and subject to the objections.
Fact of the Case:
The petitioner challenges the order passed by the trial court allowing physical visitation with the minor children to the respondent without providing an opportunity to file objections.
Finding of the Court:
The court found that the impugned order was passed as a temporary measure and subject to objections. The court also noted that the petitioner had initially agreed to the visitation rights of the respondent with the minor children.
Issues: The main issue was whether the trial court had the power to pass the impugned order and whether it violated any of the rights of the petitioner including principles of natural justice.
Ratio Decidendi: The court held that the impugned order was passed as a temporary measure and subject to objections. The court also considered the agreement between the parties regarding visitation rights and found that it was an ancillary step in the proceedings.
Final Decision: The petition was dismissed, and the impugned order was upheld. The court clarified that the dismissal of the petition did not express any opinion about the merit of the case pending before the trial court.
JUDGMENT :
1. The order dated 05.02.2021 (for brevity 'impugned order') passed by the Court of Additional District Judge (Matrimonial Cases), Jammu (for brevity 'trial court') in File No. 48/Misc. titled Iftifa Ayoub vs. Mudassir Majeed, is being questioned by the petitioner herein while invoking supervisory jurisdiction of this Court.
2. A petition is stated to have been filed under Section 25 of the Guardians and Wards Act, 1890 (for brevity the 'the Act') by the applicant/respondent herein before the trial court for custody of minor children, namely, Mohd. Ismaeel and Ahmad Abdullah on 07.11.2020. Hearing in the said petition is stated to have got deferred on imposition of lockdown due to outbreak of COVID-19 pandemic. An application under Section 12 of the Act is also stated to have been filed by the respondent herein along with the aforesaid petition for interim custody of minor children. The petitioner is stated to have appeared through his counsel through virtual mode on account of COVID-19, in the matter before the trial court and the trial court is stated to have allowed visitation rights in favour of the applicant/respondent herein with the minor children through video call/mode twice a week. The said petition is stated to have come up for consideration on 09.11.2020, 10.11.2020, 25.01.2021 and 22.02.2021.
3. On 05.02.2021, the counsel for the petitioner, is stated to have received a call from the trial court for appearance, in view of filing of an application by the respondent herein. The application is stated to have been filed by the respondent herein for allowing physical visitation. The counsel for the petitioner herein is stated to have requested the trial court for providing a copy of the application and an opportunity to respond to the same, by filing of objections. The impugned order, however, is stated to have been passed by the trial court on the same day i.e., 05.02.2021.
4. The impugned order is being questioned fundamentally and primarily on the ground that the same has been passed against the basic principles of 'Audi Alteram Partem' besides being arbitrary and illegal, in that, a copy of the application had been provided to the petitioner on 05.02.2021 at 5:30 pm and no opportunity was granted for filing objections to the said application.
5. In the above background, here it will be expedient and advantageous to reproduce the relevant extracts of the impugned order:-
“1. Applicant alongwith counsel present. Counsel for the other side. Ms. Monika Kohli Advocate through virtual mode present. Today learned counsel for the applicant has moved yet another application in the application for interim custody for allowing physical visitation with the minors. It has been submitted by the learned counsel for the applicant that the two minor children of the applicant who are merely 5 and 3 years olds are in the custody of the non-applicant and through on 09.11.2020 it was directed by the Court that applicant can have visitation through Video call with the children twice a week and same is being effected but not completely in true letter and spirit as it ought to have been. The children being of very small age usually stay with the father and are not freely speaking to the mother and are under the influence of the father or other members of his family. Besides with she has submitted that the children do not respond properly to her questions or queries and are quite abusive and disrespectful to her which is not expected of the children of such age. It has been further prayed by the learned counsel that not allowing the applicant to meet her children individually without any influence is not merely injustice to her but even to the minor children who at this stage need care, guidance, love & affection and pampering of a mother of which they are being deprived of.
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4. Perusal of the file reveals that actually no vakalatnama has been filed by any counsel in the matter till date
AI
The welfare of the child is paramount in custody and visitation matters, and both parents have a right to access the child.
Minor child does not have coping skills or intellectual ability to understand issues between adult relationship or parents unhappiness.
The welfare of the minor child and the grant of visitation rights were central to the court's decision.
The court permitted reconsideration of custody rights previously denied due to pandemic concerns, allowing a fresh application while addressing jurisdictional issues.
High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within limits of jurisdiction of subordinate courts or tribunals.
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