IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 8984 of 2008 Between: Amitabh Upadhyay, Sri Sri R.P. Upadhyay, R/o. Plot No. 18A/2, Lotus Pond Kanajiguda, Subhashnagar, Trimulgherry, Secunderabad, Presently shifted and Roat Flat No. 14, Anupama Housing Complex, Kaikhali, Kolkata - 52, now temporarily came down to Hyderabad ..... PETITIONER AND 1 Ms. Pushpita Upadhyay, W/o. Sri. Amitabh Upadhyay, R/o. C/o. Rajashee Chatterjee Flat No. 301, Building No. 2, Vijay Park, GP Road, Kasaravalli, Thane (W), now known as Ms.Pushpitaj Mukherjee, D/o. Smt.S. Mukherjee, Flat No.102,BuildingNo.3,VijayPart,GP Road, Thane(W), 2 Lok Adalat, Ranga Reddy District (II Addl. Senior Civil Judge, LB Nagar, R. R. District .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ, thereby modifying the award in OP No. 99/2005 dated 19-4-2006 of Lok Adalat, Ranga Reddy District (II Addl. Senior Civil Judge, R.R. District), the respondent No. 2 in respect of visitation rights of the Child Tania Upadhyay, born on 15-4-1999 at page Nos.3,4 & 5 and revoke the future visitation rights in favour of the respondents No. 1 herein in the interest, welfare, mental conditions of the said minor child, who is not willing to visit her mother any more. Counsel for the Petitioner:SMT.N.R.UMADEVI Counsel for the Respondent No.: MR.C.V.L.NARASIMHA RAO The Court made the following : HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION No.8984 OF 2008 ORDER: (Per Hon’ble Sri Justice A.Gopal Reddy) By means of ﬁling this writ petition under Article 227 of Constitution of India, the petitioner-husband seeks modification of the Award of the Lok Adalat, Ranga Reddy District (II Additional Senior civil Judge, R.R.District) Dated 19.4.2006 passed in O.P.No.99 of 2005 ﬁled under Section 13-B of Hindu Marriage Act for dissolution of the marriage by granting decree of divorce between the parties. In view of compromise entered by petitioner-husband and ﬁrst respondent-wife, an Award was passed under Section 21 of the Legal Services Authorities Act on 19.4.2006 in O.P.No.99 of 2005 by dissolving the marriage dated 11.5.1995 between the petitioner and the ﬁrst respondent herein and granting a decree of divorce with mutual consent in terms of the compromise. Both the parties agreed that their minor child Baby Tania Upadhyay, born on 15.4.1999 shall be under the care and custody of the petitioner. The ﬁrst respondent accepted and agreed upon for visitation rights of the said child for a period of 30 days every year, according to the convenience of the child, at her costs and expenses and the said period of 30 days shall be for 15 days in the month of January and the remaining 15 days during summer vacation in April or May every year. Further, as per the agreed terms, the petitioner shall hand over the child before the commencement of the visitation period to the ﬁrst respondent at Hyderabad at a nearest convenient place in the presence of the third parties and similarly the ﬁrst respondent shall handover the child to the petitioner on the date of completion of the visitation period without claiming for further extension at any nearest convenient place away from their residence in Mumbai, in the presence of third parties. Now, it is alleged by the petitioner that as per the award, he handed over the custody of the child to ﬁrst respondent on 24.12.2007 for 15 days to stay with her at Thane during Christmas vacation, stating that he would pick up the child on 7.01.2008 for taking over the child, after completion of 15 days period. However, when he requested the ﬁrst respondent to send back the child on 02.01.2008 for enabling the child to attend her classes on account of reopening of school and that the child could stay for longer time in summer vacation, the ﬁrst respondent was reluctant to do so, and so, he convinced the minor child that she can attend her classes after the visit. While so, he received a notice from the ﬁrst respondent on 28.12.2007 stating that she will not handover the custody of the child and demanded for permanent custody of the child with her solely. Therefore, he ﬁled the writ petition to revoke the future visitation rights of the first respondent on the minor child. This Court by order dated 28.5.2008 in W.P.M.P.No.14225 of 2008 after interviewing the child and ascertaining her views and also ascertaining the views of the petitioner and ﬁrst respondent, directed that the visitation rights provided under the award need not be implemented for the summer vacation of 2008. Aggrieved by the said order, the ﬁrst respondent-wife ﬁled Special Leave to Appeal (Civil) No.15756 of 2008 and the Hon’ble Supreme Court by order dated 18.7.2008 dismissed the Special Leave Petition with a request to this Court to dispose of the Writ Petition at an early date preferably within three months from the date of the order. In view of the request made by the Supreme Court, the Writ Petition was posted for hearing on 25.8.2008. As the petitioner’s counsel was not present, the matter is posted to today under the caption ‘for orders’. Even today, when the matter is taken up for hearing, there was no representation on behalf of the petitioner. Having regard to the fact that the award passed by the Lok Adalath, R.R.District in O.P.No.90 of 2005, dated 19.4.2006 is based upon the compromise entered between the parties, we are not inclined to modify the same unless parties are agreed for such modification. Since the minor child is not a party to the compromise entered, we pass the following order to safeguard the interests of the minor child and the parties: That as and when the ﬁrst respondent-wife ﬁles E.P. for due execution of the compromise decree passed by the Lok Adalath for her visitation rights on the minor child, the learned II Additional Senior Civil Judge, R.R.District at L.B.Nagar shall ascertain the views of the minor child as to whether she is agreeable to go along with her mother i.e. ﬁrst respondent herein and stay with her for the period of visitation rights granted in the months of January and May, and pass appropriate orders in that regard. The writ petition is disposed of accordingly. There shall be no order as to costs. ________________ A. GOPAL REDDY, J. __________________ 26th AUGUST, 2008 G. BHAVANI PRASAD, J. Tsr. To 1. Lok Adalat, Ranga Reddy District (II Addl. Senior Civil Judge, LB Nagar, R. R. District 2. Two C.D. copies.