GAURAV NAGPAL Vs. SUMEDHA NAGPAL

JUDGEMENT

(1.) This order shall dispose of Civil Revision Nos. 1794 of 2004 and 1795 of 2004. These petitions have been filed under Art. 227 of the Constitution and can aptly be described as an Illustration of Kilkenny cats' fight. In the first petition, the subject-matter of challenge is order dated 26-3-2004 passed by the learned District Judge, Gurgaon dismissing an application of the husband-petitioner for striking off pleadings from the petition filed by the wife- respondent, which are not relatable to the issues as this Court had already ordered certain issues to be deleted by its order dated 8-8-2003 passed in C.M.No. 13104-CII of 2003 in Civil Revision No. 2471 of 2003. In the second petition, challenge is to the order dated 12-2-2004 passed by the learned District Judge, Gurgaon on a prayer made by the wife-respondent for examination of a witness to prove that husband-petitioner has no time to spare for the child. The learned District Judge has disposed of the application by holding that both the parties were entitled to adduce evidence on the point of availability of time for the child.

(2.) Brief facts of the case necessary for deciding the controversy raised in the instant petitions are that the parties got married on 14-10-1996. A male child, namely Master Vasu Krishan was born to the couple on 15-11-1997. As a result of matrimonial dispute, the parties started living separately, but the child was kept by the husband-petitioner. The wife filed a petition under Artide 32 of the Constitution before the Supreme Court for custody of the child which is reported as Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745. The Supreme Court dismissed the aforementioned petition on the ground that it raised disputed question of facts. It was further held that all questions raised before the Supreme Court ought to be decided by an appropriate forum irrespective of the observation made in that judgment. Thereafter, the wife-respondent instituted petition No. 01/01/03 on 31-3- 2001 under Section 6 of the Hindu Minority and Guardianship Act, 1956 read with Section 25 of the Guardians and Wards Act, 1890. During the course of proceedings, the parties have moved this Court on one pretext or the other.

(3.) It would be necessary to make a reference to Civil Revision No. 2471 of 2003 filed by the wife-respondent which came up for consideration before this Court on 24-5- 2003. The aforementioned petition was allowed by directing the deletion of certain issues. Thereafter, the husband-petitioner filed C.M. No. 13104-CII of 2003 in Civil Revision No. 2471 of 2003, in which prayer was made for recalling of the order dated 24-5-2003. The aforementioned application was also disposed of on 8-8-2003. .This Court made it absolutely clear that the petition filed by the wife-respondent is to be tried on the following three issues :