BRIJESH ALIAS ARZOO Vs. RAJ KUMAR MANN

JUDGEMENT

(1.) PETITIONER Brijesh alias Arzoo has filed the instant revision petition under Article 227 of the Constitution of India challenging two orders - both dated 27.02.2009, passed by the Guardian Judge i.e. learned Civil Judge (Senior Division), Panchkula (Annexures P-1 and P-2).

(2.) THE petitioner filed petition for custody of minor child Rahul, who was born out of the wedlock between the parties. Marriage between the parties has since been dissolved. Petitioner is mother of the child. During pendency of the petition, petitioner sought interim custody of the minor child. Learned trial court, vide order dated 20.01.2010 (Annexure P-3), without finally disposing of the petitioner's application for interim custody, by way of ad interim arrangement, allowed the petitioner to take the minor child with her till Saturday i.e. till 23.01.2010 and the petitioner undertook to take the child to Bhiwani on Sunday i.e. 24.01.2010, to hand over the custody of the child to the respondent. This arrangement was made because the respondent readily allowed the child to live with the petitioner till Saturday i.e. 23.01.2010. However, petitioner, in compliance with the undertaking, did not take the child to Bhiwani to hand over the child to the respondent on 24.01.2010. On the other hand, the petitioner cleverly moved application Annexure P-4 before the trial court alleging that the child was not ready to go to Bhiwani on 24.01.2010 and this fact be taken on record. The petitioner also simultaneously moved another application for interim custody of the child on 25.01.2010. Learned trial court, vide impugned order dated 27.02.2010 (Annexure P-1), held that second application moved by the petitioner for interim custody of the minor is not maintainable because first application for the same relief was already pending. The trial court also directed the petitioner to hand over the custody of the minor child to the respondent. Vide second order dated 27.02.2010 (Annexure P-2), the trial court directed the petitioner to bring the minor child to the Court on 02.03.2010 (today) to hand over the custody of the minor to the respondent in compliance with the aforesaid orders. Feeling aggrieved, the petitioner has filed the instant revision petition.

(3.) FROM the sequence of events noticed herein above, it becomes apparent that the petitioner is guilty of grave misconduct. She took the ad interim custody of the minor by winning sympathy, to which the respondent had no objection, but the petitioner abused the same and instead of handing over back the custody of minor child on 24.01.2010, has retained the custody till today i.e. for more than five weeks thereafter instead of total four days only. The petitioner is guilty of violating the undertaking given in the Court and even till today, she has not handed over the custody of the minor to the respondent, although the petitioner had no right to retain the custody of the minor on or after 24.01.2010. The petitioner, in view of her aforesaid conduct, is liable to be proceeded against for committing contempt of court. However, since it is a dispute between the parents of the minor and welfare of the minor has to be kept in view, the trial court would pass appropriate order regarding interim custody and final custody of the minor, keeping in view the welfare of the minor, which is always paramount consideration in such cases. However, presently the petitioner is bound to comply with the orders, which had already been passed by the trial court and petitioner cannot abuse the sympathy shown by the trial court and by the respondent, by handing over custody of the minor to the petitioner for four days, which the petitioner is misusing by keeping the custody of the minor till today i.e. for more than five weeks after she should have surrendered the custody of the minor to the respondent. The revision petition is thus devoid of any merit and deserves to be dismissed with heavy cost, but nevertheless taking a sympathetic view of the mental state of the petitioner, who is mother of the minor, I refrain from imposing any cost. In view of the aforesaid discussion, the instant revision petition is dismissed. The petitioner, who is present in the Court with the minor child, is directed to take the minor child to the trial court at Panchkula immediately and to hand over the custody of the minor child to the respondent today itself, failing which serious legal consequences shall follow. Petition dismissed.