Civil Revision No. 4126 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4126 of 2009 Date of decision: 10.5.2010 Anurag Verma ...Petitioner Versus Shaveta Verma ..Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Sunil Garg, Advocate for the petitioner. Mr. Sanjeeva Gupta Advocate for the respondent. S.D.ANAND, J. 1. The matter pertains to the validity of the order dated 12.2.2009 (hereinafter referred to as the review order) vide which the learned Trial Court reviewed its own order dated 14.6.2008 and ordered the suspension of the latter order. The order dated 14.6.2008 allowed the petitioner father to visit the minor child of the parties in the school premises at the indicated hours and also for a duration which stands noticed in that order. Apart therefrom, it was further held by the learned Trial Court that the petitioner-father shall also be allowed to visit “at the house where he is staying with the mother as and when he likes with proper intimation and mutual arrangement with the mother”. 2. It was the vehement contention on behalf of the petitioner, at the very outset, that the review order is invalid on the face of it because the grant thereof was not preceded by the lodging of a formal motion by the respondent-mother. It requires no Civil Revision No. 4126 of 2009 -2- **** reiteration that the parties here are estranged spouses whose inter- se feuding viz-a viz the custody of their only child is the foundational premise of the subject of this petition. 3. In an exercise of elaboration of the plea advocated, it was argued that the insistence of the law upon lodging of a formal motion is appropriate because it enables the party opposite to respond to the plea precisely, particularly when the plea under consideration is for a review of the earlier order. 4. The plea was resisted by the learned counsel appearing on behalf of the respondent on whose behalf it was argued that the Court is competent to review an order of the indicated category without there being any application for the purpose aforementioned on record. Reliance, in support of the presented view, was placed upon Mrs.C.Meena Vs. C. Suresh Kumar, 1993 (2) All India Hindu Law Reporter 40 and Ashok Kumar Vs. Sangita Bai AIR 1988 Madhya Pradesh 59. 5. The preliminary resistance to the impugned order has to be affirmed as competent and valid. The reasons therefor are as under:- 6. A litigation of the present category is, by the very nature of things, entirely different from the litigation of other hues which come up before the Judicial Courts which (Courts) must remember that their approach to the manner of adjudication in the former category of cases has to necessarily have a mix of human emotional quotient and practical aspect. The law shall, of course, play a predominant consideration in a determination of that category. A Civil Revision No. 4126 of 2009 -3- **** party which comes to the Court of law must state its case in a documented form which may, in certain eventualities, be compulsively or optionally accompanied by an affidavit. On the presentation thereof, the party opposite would have an opportunity to say whatever it has to in the context of the factual averments (including the accuracy thereof) and, then, a legal adjudication on the basis thereof shall follow. The insistence upon a documented presentation would be all the more important when either party to a matrimonial controversy invites the Court to review its own order. 7. The reliance, placed by the learned counsel for the petitioner upon the judicial pronouncements in Mrs. C. Meena's case (supra) and Ashok Kumar's case (supra) is misconceived. In C. Meena's case (supra), the facts were entirely different. The Court, while disposing of a petition under Hindu Marriage Act, also opted to grant orders with regard to custody of two children the parties had had out of their union. In Ashok Kumar's case (supra) too , the facts were entirely different inasmuch as it was not a case pertaining to the review of an earlier order. In that case, the petitioner therein had filed a suit under Section 9 of the Hindu Marriage Act for the restitution of conjugal rights. In the course of the trial, one of the parties filed an application under Section 26 of the Hindu Marriage Act for obtaining the custody of only child of the parties. The plea filed by the mother came to be allowed on 18.6.1987. Thereafter, the father filed an application under Order 23 C.P.C. for withdrawal of the suit which (withdrawal) was allowed on 14.7.1987. Thereafter, on 22.7.1987, the wife-mother filed a plea for execution of “the interim Civil Revision No. 4126 of 2009 -4- **** order for custody of Pawan Kumar”. The respondent resisted that application by challenging its maintainability in view of the fact that the main suit itself had been dismissed as withdrawn. It was under those circumstances that the Apex Court held that an interlocutory order made in the course of above indicated proceedings could be validly granted by the Court with respect of the custody, maintenance and education of the minor children of the estranged parties. On Merits It is apparent from the record that petitioner-father filed a plea for the temporary custody of minor child Anish Verma under Section 26 of the Hindu Marriage Act. During the pendency of that application, the petitioner father applied for “temporary custody or visitation rights of his minor child aged about ten and a half years studying in class V Strawberry Fields World School, Sector 26, Chandigarh”. While the learned Trial Court did not agree to the grant of interim custody of the child to the petitioner father, it allowed the above noticed visitation rights to him. It is that order which came to be reviewed by the learned Trial Court, vide order dated 12.2.2009. Though the methodology of the adjudicatory exercise in a matrimonial matter, or any matter arising therefrom, has to be of same type and level as in the case of other litigation triable by the District Judge/Additional District Judges, the Judicial Courts cannot be unmindful of the fact that there is an invisible emotional quotient in proceedings of the indicated category. A child is likely to have a soft corner in mind for the parent with whom that child is putting up. At the same tine, there can be no dispute that the other parent, who Civil Revision No. 4126 of 2009 -5- **** is not putting up with the child and the estranged spouse, would continue to have a longing for bonding with the child. Estrangement between the warring spouses cannot indicate dilution of their love viz-a-viz their progeny. 8. It was argued that no useful purpose would be served by allowing the order dated 14.6.2008 to hold the fort because the only child of the parties had made it clear a number of times that he is not interested in meeting the petitioner-father. In the context, it may be noticed that this Court also afforded an opportunity to the petitioner to meet his son in the Court premises and the child consented to meet his father in the Chamber of learned Senior Counsel who appeared on that date on behalf of the petitioner-father. As noticed in the order dated 26.3.2010, both the parties came back to the Court during the post-lunch period and wanted this Court to record that the petitioner-father met the child in the presence of latter's mother- respondent and that he was satisfied with the meeting. (“They have got back during the after-lunch period. The parties want this Court to record that the applicant-petitioner met the child in the presence of the respondent-mother and he is satisfied with the meeting”.). 9. It was further argued that child just does not want to have anything to do with the father, particularly when the latter did not visit him during the last vacation period and did not even bother to find out the well being of the child. 10. The considerations which may weigh with the learned Guardian Judge in disposing of the application for custody of the child firmly would be different from those which would govern Civil Revision No. 4126 of 2009 -6- **** adjudication of a demand for the grant of visitation rights. In fact, we are presently deciding with a case of latter category. 11. There is nothing unnatural on the part of the parties in having developed differences with each other. They are educated. They come from different societal backgrounds. For want of required understanding or immaturity or whatever other reasons, they may not have been able to reach the required comfort level with each other. At the same time, there can be no manner of doubt about their unqualified love for their progeny. Even if the child has initial reluctance in meeting his father, it would be a lesser evil to continue the visiting rights. For all we know, the access – actuated rapport developed between father and son may reduce the averred 'disinclination' in the mind of the child towards his father and it might well prove to be a catalyst in the embittered relationship of the parents herein. I am persuaded to observe so in the light of the facts noticed in the course of order dated 26.03.2010. The essential purpose of allowing visitation right to the spouse (with whom the progeny of the estranged spouse is not putting up) is to let them have the physical feel of each other which (feeling) would contribute to their emotional upkeep. It is a matter of common observation that the child would, for one reason or the other, have extra love and affection for that parent with whom he lives day in and day out. The continuity of living together also gives a rise to a feeling of companionship and apparent indispensability for each other. Any delay in the disposal of the main custody petition, could give rise to avoidable unsavoury implications on the emotional Civil Revision No. 4126 of 2009 -7- **** health of the child. I recollect having dealt with a case wherein the only child of the parties was putting up with his father. In spite of there being an order granted by this Court about the grant of visitation right to the mother, access was denied to her. In terms of the orders, the child had to be brought to the court premises on indicated days and the mother had a right to be in the company of the child for indicated duration. There were times when the father would announce to the Court that the child could not be fetched as he was not inclined to see his mother. There were also times when the child would be brought to the Court but left in the car itself and it would be announced to the mother and the Court concerned that the driver of the vehicle had gone away (with the keys) unannounced. The long and short of the statement on facts is that visitation rights were, infact, denied to the mother. That case ultimately came to be decided in favour of the mother. One can imagine the emotional/psychological turmoil in the mind of the child who had spent quite a substantial part of a decade away from the mother and who had been directed by the Court to go over and live with the mother. If visitation rights are faithfully exercised/implemented, the child concerned would necessarily stay in touch with the non-resident parent. 12. In the circumstances noticed above, this Court is of the considered view that the impugned review order was not competent. It shall stand set aside. The order with regard to visitation rights of the father shall continue to be in force. May 10, 2010 (S.D.Anand) Pka Judge