Tahera Haque vs Union Of India & Ors

Ajay Kumar Mittal, CJ

The petitioner-wife has approached this Court under Article 226 of the Constitution of India seeking custody of minor baby child from respondent No.4 with whom marriage was solemnized on 11.09.2015 as per Islamic custom and practice. The marriage was registered under the Jammu and Kashmir registration of Muslim Marriage Act, 1981 vide Certificate No.000397501 dated 21.09.2015 and petitioner and respondent No.4 thereafter started living together as husband and wife. Out of the wedlock, a baby child was born on 05.05.2019. However, differences cropped up between the petitioner and respondent No.4 which resulted in the dispute regarding custody of the child.

The petition came up for hearing and notice was issued whereupon the respondent No.4 along with the child was directed to appear on 18.10.2019. On the said date, the matter was referred for mediation between the parties to the Chairperson, State Commission for Protection of Child Rights [SCPCR] who was requested to act as a mediator and the following order was passed, which reads thus:-

"Respondent No.4-husband along with the infant child of about 5 months is present in compliance to the order dated 03.10.2019 and subsequent orders thereafter.

Respondent No.4 has appeared in person and has produced the photo copy of the letter dated 24.07.2019 signed by the petitioner, wherein, the custody of the child has been agreed to be handed over to the respondent No.4. However, the authenticity of the said letter has been denied by the petitioner on the ground that the signatures of the petitioner thereon were obtained under threat. Be that as it may, since the matter relates primarily to the custody of a minor child, it would be appropriate that it is referred for mediation between the parties. Accordingly, Smti. M. Kharkongor, Chairperson, State Commission for Protection of Child Rights [SCPCR] is requested to act as a mediator and send the report to this Court by tomorrow. The parties shall appear before the mediator today at 2:00 PM.

Adjourned to 21.10.2019 for further consideration.

The respondent No.4 along with the infant child shall remain present on the next date of hearing on 21.10.2019."

A report has been received from the mediator who has expressed that both the parties have come to terms and decided to reconcile for the sake of the infant child and out of their freewill have agreed that as soon as respondent No.4 gets an accommodation at his place of posting, he shall take back his wife (petitioner) and they shall live together. The report submitted by the Chairperson, State Commission for Protection of Child Rights [SCPCR] is as under:-

"The undersigned as directed by the Division Bench of the High Court of Meghalaya, Coram: Hon'ble Mr. Justice Ajay Kumar Mittal, Chief Justice & Hon'ble Mr. Justice H.S. Thangkhiew, Judge mediated upon parties being present before the Mediator on the above date at 2:00 P.M.

After introduction with both the parties, the Mediator explained to them as to why the case has been sent to the Commission because it concerns "The Best Interest" of the child.

Both the parties were given ample time to sort out their differences with no compulsion or any sort of intimidation, and after a long deliberation, the parties have come to terms and have decided to reconcile for the sake of their infant child, with a request from the husband to withdraw all the allegations against him to which the wife has agreed to do so voluntarily.

With regard to the wife joining her husband, it was also agreed that as soon as he gets an accommodation at his place of posting, he shall take back his wife.

This is for your kind information and further necessary action.

Sd/-

Dated, Shillong: the 18/10/2019 (Smti. M. Kharkongor)

Mediator for the Hon'ble

High Court of Meghalaya"

In view of the above, the writ petition is disposed of as infructuous. However, learned counsel for Union of India assured the Court that the Union of India-respondent-No.1 shall make all sincere efforts for allotment of married accommodation to respondent No.4 expeditiously preferably within two weeks in accordance with law.