In CR-2332-2022-PUNJ HC- In custody matter, P&H HC modifies Family Court’s order by allowing mother to file written statement as period of 90 days after first date fixed for filing her written statement was not over Justice Sandeep Moudgil [09-06-2022]

Read Order: MEENAKSHI BAWEJA V. DEEPAK BAWEJA

LE Correspondent

Chandigarh, June 13, 2022: In a case involving custody of a minor child wherein the defence of the petitioner-mother was struck off by the Family Court, the Punjab and Haryana High Court has opined that no prejudice would be caused to either of the parties to the lis and allowed the petitioner to file her written statement as the dispute related to the future and welfare of two minor children.

Also, the Bench of Justice Sandeep Moudgil observed, “… the period of 90 days is still not over, if the first date for filing the written statement is taken to be 4th April, 2022, as the order under challenge before this Court itself shows that efforts were being made to interact with the minor children and the petitioner-mother was called upon to appear and to produce the children time and again, as part of re-conciliation/mediation proceedings.”  

The instant revision petition under Article 227 of the Constitution of India was filed by the petitioner (Meenakshi Baweja) against the order of the Additional Principal Judge, Family Court, Gurugram giving the custody of the petitioner’s minor sons to the respondent-father from June 2, 2022, to June 14, 2022. Vide the same order, the Court also struck off the defence of the petitioner. 

Since the period granted for interim custody in favour of the respondent-father almost expired, the Counsel did not press the present petition. However, he requested that the defence of the petitioner which was struck off by the Court below for not filing a written statement since October 5, 2021, to that extent the revision petition be allowed. 

The counsel further submitted that it was for the first time on April 4, 2022 that the case was fixed for filing a written statement and thereafter on May 30, 2022, and that on May 31 May 2022 the entire defence of the petitioner was struck off, thus restraining the petitioner from filing the written statement. 

At the very outset, the Court observed that the State Counsel made an attempt to highlight the conduct of the petitioner-mother, which otherwise was a question of disputed fact which was to be adjudicated and examined during the course of evidence and therefore, the Court did not deem it appropriate to consider the same. 

Further, the Court observed,

“Be that as it may, the period of 90 days is still not over, if the first date for filing the written statement is taken to be 4th April, 2022, as the order under challenge before this Court itself shows that efforts were being made to interact with the minor children and the petitioner-mother was called upon to appear and to produce the children time and again, as part of re-conciliation/mediation proceedings.”

Thus, in view of the above, the Court was of the considered view that no prejudice would be caused to either of the parties to the lis, if the written statement was allowed to be filed otherwise also to meet the ends of justice providing equal opportunity to them because the dispute was of utmost importance relating to the future and welfare of two minor children. 

As a result of the above observations, the order of May 31, 2022, was modified to the extent that the petitioner was allowed to file the written statement on or before July 15, 2022, with an advance copy to the counsel for the respondent-father. 

“In case the written statement is not filed within the prescribed period, the order with regard to striking down the defence of the petitioner-mother will become operative”, the Court held while also adding that the opportunity to file the written statement on or before July 15, 2022, was subject to deposit of the cost of Rs. 25,000/- in the bank accounts of the children in equal share, which shall not be withdrawn by either of the parents without prior permission of the Court below.