Jammu & Kashmir High Court - Srinagar Bench
Reyaz Ahmad Hakeem vs Shabrooza Akhter And Ors on 21 September, 2021
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Serial No. 19
Regular Cause list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
MA No. 235/2015
IA No. 01/2015
C/w
MA No. 225/2015
IA No. 01/2015
Reyaz Ahmad Hakeem
..... Petitioner(s)
Through: -
Mr. M. I. Qadri, Sr. Advocate with Mr. Naveed Gul, Advocate
V/s
Shabrooza Akhter and Ors.
..... Respondent(s)
Through: -
None CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge (ORDER) 21.09.2021 In terms of order dated 01.12.2015, this Court while issuing notice to other side had stayed the impugned order dated 16.11.2015.
Respondents were represented by Mr. G. Q. Bhat, Advocate, but on his non-appearance the Court vide order dated 17.08.2021, directed fresh notice be issued to Mr. G. Q. Bhat, learned Advocate for appearance, who despite service has chosen not to appear, leaving no option but to set the respondents in ex-parte.
The claim made in the instant civil miscellaneous appeal has reference to the challenge of the order passed by the Principal District Judge, Anantnag, in the application, seeking appointment of guardian by respondent No. 1, Shabrooza Akhter of female child namely Aisha Jan, aged five years, on the grounds detailed out in the guardianship application. The ground taken in the appeal has reference to non-adherence to the procedure.
Perusal of the order reveals that the Court below on recording the appearance of the parties and despite seeking time for filing objections, had asked the presence of female child namely Aisha Jan. When asked Mr. M. I. Qadri, learned senior counsel submits that the custody of the child is with the appellant, who is the father of the female child and the same by no stretch of imagination can be given to respondent No. 1, as she has lost her right of Hizanat after re-marriage. He further submits that as per the settlement the appellant and respondent No. 1, separated with each other by execution of Dissolution (Khullanama) dated 25.07.2015 and in the Khullanama, the parties have agreed that the minor female child will remain with the appellant as natural guardian.
Heard Mr. M. I. Qadri, learned senior counsel appearing for the appellant, perused the records and considered the matter.
Examination of the impugned order reveals that the Court below at the threshold had sought presence of the female child by even directing issuance of warrant, when as a matter of fact the orders passed in the petition filed under Section 100 Cr.PC by the respondent No. 1, Shabrooza Akhter were set aside by this Court vide order dated 01.12.2015, in the petition filed under Section 561-A No. 165/2015, by the appellant, but despite the said order the impugned order was issued. The submissions of Mr. M. I. Qadri, learned senior counsel have substance. The relevant para of the Judgment passed in petition under Section 561-A No. 165/2015 being relevant is extracted as under:-
"This petition for the foregoing reasons is allowed. The order dated 29th July 2015 passed by ld Chief Judicial Magistrate, Anantnag is quashed. Consequently, the proceedings initiated under Section 100 Cr. PC against the said minor Aisha Jan shall stand dropped. However, respondent is at liberty to seek the appropriate remedy."
The Court while dealing with the application for appointment of guardian has passed the order without reasoning, without hearing the parties and without detailed out the basis for entitlement of respondent No. 1.
In the above background, the appeal is allowed and order passed on 16.11.2015, by the Principal District Judge, Anantnag in case titled Shabrooza Akhter Vs. Reyaz Ahmad Hakeem and Others is set aside.
Disposed of along with connected IA(s).
MA No. 225/2015 This Civil Miscellaneous Appeal is against the orders passed by the Principal District Judge, Anantnag, dated 16.10.2015, 04.11.2015 and 10.11.2015.
Mr. M. I. Qadri, learned senior counsel submits that even on staying the order passed on 16.10.2015, the Court of Principal District Judge, Anantnag in terms of order dated 04.11.2015, issued the bailable warrant in favour of the appellant to be executed by SHO concerned, with direction that the appellant be arrested and brought before the Court along with the minor child namely Aisha Jan, not only that the Court of Principal District Judge, Anantnag, vide order dated 10.11.2015, has issued another direction, directing the SHO Police Station, concerned to get the minor female child before the Court.
Learned senior counsel submits that order dated 04.11.2015, is legally untenable as appellant was not served as required by law, therefore, the Hon'ble Court could proceed ex-parte and pass order but the Principal District Judge, Anantnag, has directed SHO, concerned to arrest appellant in pursuance to a warrant thereby resorting to the provisions of Cr.PC, when no such powers are available to the learned District Judge, Anantnag, as per J&K Guardians and Wards Act while adjudicating under the same, as there was no order for production of the minor, could be passed, more so, when the warrant under Section 100 issued earlier by Chief Judicial Magistrate for same cause/purpose under stay, the Principal District Judge, Anantnag ought to have been waited for the decision of the Hon'ble Court and deferred the proceedings but in violation of law on subject he has ordered production of the ward also along with the appellant by SHO, after arresting appellant in pursuance to a warrant which is unauthorized, illegal untenable and contrary to the law. Moreso, there was also an application filed by proforma respondents which is pending before the trial Court for dropping of the proceedings and recalling of the order dated 16.10.2015, no cognizance of the same was taken nor the same was considered nor the assertion made thereunder were considered while passing order dated 04.11.2015. The submissions made by learned senior counsel has substance, therefore, accepted.
In view of above discussion, the appeal is allowed and the orders passed on 16.10.2015, 04.11.2015 and 10.11.2015, by Principal District Judge, Anantnag, in case titled Shabrooz Akther Vs. Reyaz Ahmad Hakeem are set aside.
Disposed of.
Registry to place copy of the order on each of the file.
(Ali Mohammad Magrey) Judge SRINAGAR 21.09.2021 "Mohammad Yasin Dar"
MOHAMMAD YASIN DAR2021.09.22 12:13 I attest to the accuracy and integrity of this document