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2007 DIGILAW 1236 (DEL)

JYOTI SHARMA v. ARVIND SHARMA

2007-06-13

J.P.SINGH

body2007
( 1 ) THIS application under Section 151 of the Code of Civil Procedure has been moved in an Appeal which was disposed of vide order dated 2. 4. 2007. In the said order the High Court had given directions to the Guardian Judge to decide inter alia the question about the custody of the girl child and whether the mother should take the child to Australia and if so, for what time" It was opined that the questions require investigation, inquiry and evidence. However, since there was urgency about taking the child abroad during summer vacations by the mother, in whose custody the child is, the Guardian Judge was directed to decided immediately within a period of 45 days from 2. 4. 2007. With these directions the Appeal was disposed of. ( 2 ) THE main grievance of the learned counsel for the applicant is that though the learned Guardian Judge had been hearing the matter almost from day to day no order has been passed for taking the child abroad during summer vacations, whereas the learned Guardian Judge has passed an order for visitation rights of the father-respondent and the Petitioner has been directed to take the child for meeting her father every Saturday, even during summer vacations. Aggrieved the present application has been filed. ( 3 ) LEARNED counsel for the Respondent has submitted that firstly the application could not be filed in a disposed of Petition and secondly the husband apprehends that once the child goes abroad, the child will not be brought back and the Petition of the husband-father for custody of the child will become infructuous. ( 4 ) MY attention has been drawn to the order dated 28. 10. 2006 passed by the guardian Judge allowing an earlier application of the applicant-mother to take the child abroad from 20. 12. 2006 to 1. 1. 2007, subject to furnishing two sureties of Rs. 50,000/- each for producing the child in the court on the date already fixed. ( 5 ) LEARNED counsel for the applicant submits that this period could not be availed of because in such a short period the mother and the child could not have enjoyed their stay abroad. ( 6 ) I am of the view that the only apprehension of the Respondent-father is that the child may not come back. ( 5 ) LEARNED counsel for the applicant submits that this period could not be availed of because in such a short period the mother and the child could not have enjoyed their stay abroad. ( 6 ) I am of the view that the only apprehension of the Respondent-father is that the child may not come back. However, the father had not challenged the above said order dated 28. 10. 2006. In my view if the learned Guardian Judge has not been able to comply with the High Court order regarding the visit of the child to Australia due to rush of work, this court can definitely pass an order. ( 7 ) THE girl child namely Baby Sejal is already in custody of the mother and the earlier order for sending them abroad was not challenged by the Respondent. I, therefore, permit the mother namely Smt. Jyoti Sharma in whose custody the child Baby Sejal is, to take her to Australia and the child can remain there up to first week of July, 2007, subject to furnishing of two sureties in the sum of rs. 50,000/- each with an undertaking affidavit in the court that the child will be brought back and produced in the court of the Guardian Judge. The Australian authorities will give viza to the child only up to 7th July, 2007. During summer vacations the order of the learned Guardian Judge regarding visitation will remain in abeyance. ( 8 ) NOTHING said herein will tantamount to expression of opinion on the merits of the applications and the main case pending before the Guardian Judge. The application stands disposed of. .