Sana v. Faisal

1. Parties to Guardian Petition Nos.27/2014 and 70/2015, who are parents of BabyAlina and BabyAvni, are litigating to seek custody of their MAT.APP.(F.C.) Nos.24/2016 &57/2016 Page 1 of[6] 2016:DHC:8843-DB daughters.

2. Admitted case of the parties is that on embracing Islam, Sana @ Sandhya - a Hindu Brahmin girl got married to Faisal on May 27, 2005 as per Muslim rites. Elder daughter Baby Alina was bom on June 04, 2008 whereas younger daughter Baby Avni was bom on August 07, 2010. Unfortunately a divorce took place on June 08, 2011 as per Muslim law and since then the elder daughter Baby Alina is with Faisal (hereinafter referred to as father) whereas younger daughter Baby Avni is with Sana@ Sandhya (hereinafter referred to as mother).

3. Now the litigation is going on over the right to have the custody of children. Whereas Guardian Petition No.27/2014 was filed by the father (respondent herein) seeking custody of his younger daughter Baby Avni, who is with her mother, Guardian Petition No.70/2015 was filed by the mother (appellant herein) for seeking custody of her elder daughter Alina, who is with her father.

4. Undisputed facts are that treating Guardian Petition No.27/2014 filed by the father for seeking custody of his younger daughter as lead petition, by common judgment dated February 17, 2016 the leamed Judge, Family Court allowed the petition filed by the father to have custody of younger daughter Baby Avni and dismissed the petition filed by the mother to have custody of elder daughter Baby Alina but giving visitation right to the mother to meet her daughters.

5. Feeling aggrieved the mother has filed two separate appeals to question the legality and validity of the impugned judgment common to Guardian Petition Nos.27/2014 and 70/2015. MAT.APP.(F.C.) Nos.24/2016 & 57/2016 Page 2 of[6]

6. Before commencing arguments on merits, learned counsel for the appellant has drawn the attention of this Court to the fact that in violation of principles of natural justicewithout anynoticeto the mother/appellant, the learned Judge, Family Court on February 06, 2016 had examined the elder daughter of the parties when the matter was already reserved for judgment. The substance of examination of Baby Avni has been extensively used and relied upon by the learned Judge, Family Court which has caused serious prejudice to the case ofthe appellant.

7. The factum of examination of elder daughter of the parties on February 06, 2016 without any noticeto the appellant has not been disputed by learned counsel for the respondent. However, it is submitted that it was done pursuant to the direction of the Court. Learned counsel for the respondent failed to point out any such direction issued by the Court after the two matters were reserved forjudgment.

8. The proceedings dated February 06, 2016 are as under:- '6-02-2016 File has been taken up. on the verbal request ofFaisal. Present: Faisal inperson. Faisal hasfiled certified copies ofcertain judicial documents alongwith written arguments. The same are taken on record. On Court query, he submits that ed (elder daughter) Alina has notyet been heard in the chamber. Let baby Alina be produced after lunch for in Chamber interaction. Sd/- Addl. Principal Judge, Family Court (West) Delhi MAT.APP.(F.C.) Nos.24/2016 &57/2016 Page[3] of[6] At 3 Pm Present: Faisal with babyAlina. In chamber interaction with only babyAlina held and the contents of the interaction has been recorded separately. Beput up on 120-2-2016 after lunchforjudgment/. In the meanwhile Faisal is at liberty to place on record the certified copies ofthe remainingjudicial documents if any which were sought to be placed on record during the examination ofthe witnesses. Beput up on 12-02-2016forjudgment. Sd/- Addl. Principal Judge, Family Court (West) Delhi'

9. On page 84 of the impugned judgment, the learned Principal Judge, Family Court has referred the contents of interaction held with the younger daughter Baby Avni on October 28, 2015 i.e. much before the hearing was concluded in the two guardianship petitions. On page 85 of the impugned judgment, learned Principal Judge, Family Court has referred to the interaction with the elder daughter Alina in the chamber on February 06, 2016 and crux ofthe same hasbeen extracted inthe nexttwopages.

10. The learned Judge, Family Court should not have examined the elder daughter, who was just aged about TA years at that time, at the back of the mother/appellant merely because while producing her in the Court a verbal request was made by father to examine her elder daughter Baby Alina.

11. We find traces inthe judgment oflearned Judge, Family Court being MAT.APP. (F.C.) Nos.24/2016 &57/2016 Page 4of[6] 1^ influenced with the contents noted during interaction with the elder daughter. This has caused serious prejudice tothe case setup by the mother.

12. With the consent of learned counsel for the parties we set aside the judgment dated February 17, 2016 passed by learned Judge, Family Court common to Guardian Petition Nos.27/2014 and 70/2015.

13. The Principal Judge, Family Court (West District), Tis Hazari Court, Delhi shall either hear the matter himself/herself or assign it to some other Court other than Ms.Reena Singh Nag, Addl. Principal Judge, Family Court, West District, Delhi.

14. The learned Judge, Family Court is directed to give an opportunity to the parties to make submissions and the judgment shall be passed without referring to or being influenced with the contents noted during interaction withthe elder daughter Baby Alina onFebruary 06, 2016.

15. Till the two guardianship petitions are finally disposed of by the learned Judge, Family Court, we feel it to be in the interest and welfare of both the daughters that status quo in respect of their custody to be maintained, meaning thereby that the elder daughter shall remain in the custody of her father whereas the younger daughter shall remain in the custody of her mother. However, this will not have any adverse effect on the visitation right of the parties as well the interaction between the two siblings during vacations or festivals as and when necessitated/permitted by the learned Judge, Family Court.