Case Note & Summary
The petitioner, Shardul Shamprasad Dev, filed a writ petition challenging two orders passed by the District Judge-2, Kopergaon: (1) order dated 21.09.2022 striking off his defence under Order XXXIX Rule 11 of the Code of Civil Procedure, 1908, and (2) order dated 30.09.2022 rejecting his application for recall of that order. The dispute arose out of a custody battle between the petitioner-father and respondent No. 1-mother over their child. The District Court had earlier granted visitation rights to the mother, initially on Wednesdays and later modified to Sundays at a temple. The mother alleged repeated violations of these orders and sought striking off of the father's defence. The trial court allowed the application, striking off the father's defence. The father then moved for recall, which was rejected. In the High Court, the father's counsel argued that the child was unwilling to meet the mother, which was the reason for non-compliance. The High Court observed that striking off defence is a drastic step and should be used sparingly, especially in custody matters where the child's welfare is paramount. The court found that the father's explanation was plausible and that the order was disproportionate. The High Court set aside both impugned orders, restored the father's defence, and directed the trial court to decide the custody application afresh, preferably within six months. The court also suggested that the trial court may refer the matter to a counsellor to ascertain the child's wishes. The petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Striking Off Defence - Order XXXIX Rule 11 CPC - Visitation Rights - The trial court struck off the father's defence for non-compliance of visitation orders granted to the mother. The High Court held that striking off defence is a drastic step and should be used sparingly, especially in custody matters where the child's welfare is paramount. The court found that the father's explanation that the child was unwilling to meet the mother was plausible and that the order was disproportionate. (Paras 2-6) B) Family Law - Child Custody - Visitation Rights - Welfare of Child - The High Court emphasized that in custody battles, the court must ensure that the child's interests are not sacrificed. The father's defence was restored, and the trial court was directed to decide the custody application afresh, preferably within six months, and to consider referring the matter to a counsellor to ascertain the child's wishes. (Paras 5-7)
Issue of Consideration
Whether the order striking off the petitioner's defence under Order XXXIX Rule 11 of the Code of Civil Procedure, 1908 for alleged non-compliance of visitation rights orders is sustainable in law.
Final Decision
The High Court allowed the writ petition, set aside the orders dated 21.09.2022 and 30.09.2022, restored the petitioner's defence, and directed the trial court to decide the custody application afresh, preferably within six months. The trial court may consider referring the matter to a counsellor to ascertain the child's wishes. No order as to costs.
Law Points
- Order XXXIX Rule 11 CPC
- striking off defence
- visitation rights
- child custody
- welfare of child
- proportionality
- restoration of defence
