FAO No.13/2025 Serial No. 18 Regular HIGH COURT OF JAMMU & KASHMIR AND LADAKHAT SRINAGAR FAO 13/2025 CM (2887/2025). YASMEENABANO …Appellant(s) Through: Mr. Shafqat Nazir, Advocate. Petitioner present in person. VERSUS IRSHAD AHMAD SHEIKH. …Respondent(s) Through: None. CORAM:HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE. ORDER(ORAL) 28.07.2025 01. The appellant, through the medium of the present appeal, has challenged order dated 08.03.2025 passed by the learned Principal District Judge, Baramulla, whereby, while deciding the application of the respondent seeking modification of order dated 09.06.2023 passed by the said Court on the basis of settlement arrived at between the parties, a direction has been issued whereby it has been provided that the minor wards are at liberty to reside with any of the parties and if they wish to reside with their father(the respondent herein)they may do so, but mother(the petitioner herein) will have right of visitation. 02. Notice of this appeal was issued to the respondent, who was on caveat, but despite service, nobody has FAO No.13/2025 appeared on behalf of respondent/caveator. Hence, the matter has been taken up for consideration in exparte. 03. I have heard learned counsel for the appellant as also the appellant in person and perused the impugned order and the trial court record. 04. It appears that a petition under Section 25 of the Guardian and Wards Act came to be filed by the respondent against the petitioner, seeking his appointment as guardian in respect of the minor wards, namely, Sheikh Mohammad Afan, (aged 5 years) and Aliza Irshad, (aged 3 years). During pendency of the said petition, a settlement was arrived at between the parties with respect to visitation rights qua minor ward namely, Aliza Irshad (daughter of the parties).Accordingly, vide order dated 09.06.2023, visitation rights were given to the respondent-father in the following manner: (i) That respondent (mother) shall produce the ward namely, Aliza Irshad (aged 3 years) in ADR Centre, District Court Baramulla on 2nd and 4th Friday of every month at 2:00 PM and leave the custody of the ward with the petitioner till 4:00 PM wherein after petitioner shall re-deliver the custody of the ward to respondent. (ii) The expenses including the transport and other allied charges for bringing the wards from the place of abode to ADR Centre, District Court, Baramulla are quantified at Rs. 500/- per sitting. These expenses shall be entirely borne by the petitioner. FAO No.13/2025 (iii) That non-compliance of the order without any reasonable/lawful excuse would make the defaulter party liable to the costs to the tune of Rs. 2000/-. (iv) The respondent herself produce the minor ward (son) in the office of ADR Centre, District Court, Baramulla. 05. It was provided that the aforesaid arrangement shall remain in force for a period of one-year whereafter the parties were given liberty to seek alteration/modification of the said order. 06. It seems that the respondent herein moved an application for modification of order dated 09.06.2023 before the learned Trial Court in which it was pleaded that the minor daughter is emotionally attached to her father as well as with her brother who is residing with the father, but the petitioner (mother) does not allow the minor daughter to be with them, as a result of which she is being deprived of love and affection of her father which adversely impacts her mental health. The respondent-father further pleaded that he should be allowed access to the minor daughter at her school which is being obstructed by the petitioner- mother.The application was resisted by the petitioner by filing detailed objections thereto. 07. It seems that the learned Trial Court while considering the said application has passed the impugned order, whereby he has left it to the discretion of the minor wards FAO No.13/2025 to reside with any of the parents and an option has been given to the petitioner(mother) to exercise her visitation rights. 08. Learned counsel for the petitioner has submitted that under the garb of the impugned order, respondent-father has taken over the custody of the minor girl and the petitioner has been deprived of even the visitation rights. It has been submitted that the learned Trial Court was expected to decide the application for modification filed by respondent/father on its merits after going into merits of the rival contentions raised by the parties but instead of doing so, the learned Trial Court, without deciding anything on merits,has allowed the change of custody of the minor daughter from her mother to her father. 09. Having gone through the material on record and having perused the impugned order, it appears that there is merit in the aforesaid submission made by the learned counsel for the petitioner. Learned Trial Court while passing order dated 08.03.2025 on the basis of settlement arrived at between the parties had only determined the question with regard to visitation rights of the parties in respect of the minor daughter. The issue with regard to guardianship of the two minor children was neither settled between the parties nor the same has been determined on FAO No.13/2025 merits by the Trial Court while passing order dated 08.03.2025. The scope of modification of order dated 09.06.2023 should have been to the extent of providing for any modification in the visitation rights, but the learned trial court, instead of addressing this aspect of the matter, it appears, under the garb of giving option to the minor daughter to reside with either of the parents has allowed the change of her custody without therebeing any specific order to the said effect. The learned Trial Court has also not dealt with the objections raised by the petitioner-mother in her reply filed to application of respondent-father. The order impugned, is, therefore not sustainable in law and deserves to be set aside. 10. Accordingly, impugned order dated 08.03.2025 passed by the learned trial court is set aside and the said Court is directed to decide the application of respondent- father for modification of order dated 09.06.2023 on its merits after hearing the parties afresh. Till such time the matter is finally decided by the learned trial court, the arrangement provided under order dated 09.06.2023 shall remain in force. However, the respondent-father shall permit the visitation rights to the petitioner-mother qua the minor daughter on such terms as may be decided by the learned trial Court after consulting both the parties. FAO No.13/2025 11. Having regard to the nature of the proceedings, it is expected by the learned Trial Court shall decide the issue with regard to custody of the both the minor children including the visitation rights of the parties most expeditiously on its merits, preferably within two months from the date a copy of this order is served upon the trial court. 12. Disposed of. (Sanjay Dhar) Judge SRINAGAR 28.07.2025 “Bisma” Whether the order is reportable:Yes/No