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2009 DIGILAW 382 (GUJ)

Shilpa R. Shinde v. Sujit J. Munshi

2009-05-14

C.K.BUCH

body2009
Judgment C.K. Buch, J.—Invoking jurisdiction of this Court under Article 227 of the Constitution, Shilpa Shinde, petitioner of Special Civil Application No. 1219 of 2009 and divorcee wife of respondent Sujit J. Munshi and also mother of minor Akshada, has prayed for issuance of appropriate writ, direction or order by quashing and setting aside the order dated 22.10.2008 passed below applications Exhibit 5 and application Exhibit 11 in Misc. Civil Application No 1001 of 2008. It is further prayed that this Court may direct the respondent to hand over custody of minor Akshada to the petitioner for fixed time or for a period which this Court may deem fit. It is also simultaneously prayed that pending the disposal of the petition, interim orders also may be passed in terms of Para-7[A] of the petition. It is also prayed by the petitioner that pending the admission, hearing and final disposal of the petition, this Court may grant custody of minor Akshada on weekends i.e., from Friday evening after school hours till Sunday night at 8.00 hrs, more particularly, in the background of the terms of decree of divorce drawn on mutual consent whereby the parties had agreed and arranged in that term. 2. The petitioner approached the District Court with an application under Section 25 of Guardian & Wards Act and prayed to pass interim orders as to custody of minor Akshada as contemplated under Section 12 of the said Act. Application preferred under Section 12 is the application Exhibit 5 decided by the learned 5th Additional District Judge, Vadodara along with application Exhibit 11. Learned Judge rejected the prayer made by the petitioner, mother of minor Akshada. After service of notice of the petition as well as application preferred under Section 12 of the Guardian & Wards Act, i.e application Exhibit 5, the respondent, father of minor daughter Akshada filed an application Exhibit 11 under Order 7 Rule 11 read with Secs 3 and 7[3] of Guardian & Wards Act [hereafter to be referred to as “the said Act”] and prayed that proceedings initiated by the petitioner under Section 25 as well as under Section 12 of the said Act are not maintainable at law and therefore, application Exhibit 1 preferred under Section 25 requires to be rejected. Such application preferred by the petitioner in the District Court is a plaint and the same can be rejected under Order 7 Rule 11 of Civil Procedure Code if the same is found infirm and unsustainable proceeding. The learned Judge allowed the application Exhibit 11. The order under challenge is a common order dated 22nd October, 2008. 3. According to the petitioner, the order under challenge passed by the learned lower Court is illegal, unsustainable and patently contrary to the equity and good conscience and against the interest of minor Akshada. While dealing with application Exhibit 11, the learned Judge has absolutely failed in considering various legal as well as factual aspects emerging from the record and also the conduct of the respondent, father of minor Akshada. 4. When Special Civil Application No. 1219 of 2009 came up for hearing on 18th February, 2009, the Court found that one proceeding is initiated by the respondent of the petition [father of minor Akshada] under Section 26 of the Hindu Marriage Act, after initiation of the proceedings by the petitioner Shilpa [mother of minor Akshada]. The Court suo motu decided to call for the proceedings to ascertain as to the genuineness of the proceeding, sustainability and the intention of the party who initiated the proceeding, simultaneously, applying mind that there may be conflict of orders by two competent courts; i.e. this Court and the Court before which proceeding under Section 26 of the Hindu Marriage Act is pending. After appearance in the suo motu proceeding initiated by the Court, respondent, father of minor Akshada filed reply affidavit expressing his conduct, condition of minor, place of study of minor Akshada and impeaching the conduct and character of Respondent No. 2 [mother] of suo motu proceeding and petitioner of Special Civil Application No. 1219 of 2009. After some adjournment, respondent filed the affidavit which is dated 29th April, 2009. No formal affidavit was filed in suo motu petition. On 24th April, 2009, the Court asked the Respondent No. 1 [father of minor] to file reply affidavit if he so desires and then only affidavit in reply has been filed. After some adjournment, respondent filed the affidavit which is dated 29th April, 2009. No formal affidavit was filed in suo motu petition. On 24th April, 2009, the Court asked the Respondent No. 1 [father of minor] to file reply affidavit if he so desires and then only affidavit in reply has been filed. Till that date, there was no resistance qua suo motu proceedings initiated and only oral submission was made to the Court that respondent-father is thinking to assail initiation of suo motu proceedings before the Apex Court and has not decided as to whether he should submit to the jurisdiction or not and, therefore only, after some time, the Court asked the respondent-father to file affidavit in reply if initiation of suo motu has not been challengned and therefore, affidavit in reply has been filed. 5. I have heard the learned Counsel appearing for the parties. Learned Counsel for the parties have agreed that common order can be passed on merits for the sake of convenience as reply affidavits have been filed and, therefore, present common order is passed. Before appreciating the oral submissions made by learned Counsel for the parties and the judgments relied on by them, it would be beneficial to state facts which are emerging from the record and undisputed facts stated before the Court by the learned Counsel for the parties. 6. Shilpa, petitioner and mother of minor Akshada married the respondent Sujit Munshi on 15th June, 1998 as per Hindu rituals. Out of the said wedlock, minor child Akshada was born on 31st October, 1999. She is aged about 9 years. Prior to August, 2004, the father and mother developed differences and both of them started living separately since 9th August, 2004. Ultimately, on 29th November, 2006, they decided to have divorce by mutual consent under Section 13[1][b] of the Hindu Marriage Act. In the matrimonial proceedings, there was serious controversy as to right of guardianship qua minor Akshada and so also qua custody of the minor child. However, in the Hindu Marriage Petition, besides various consent terms, the parties decided the right of guardianship and it was agreed that custody of minor Akshada will be given to the petitioner mother from Friday onwards after closing hours of school till 8.00 p.m. of Sunday evening. However, in the Hindu Marriage Petition, besides various consent terms, the parties decided the right of guardianship and it was agreed that custody of minor Akshada will be given to the petitioner mother from Friday onwards after closing hours of school till 8.00 p.m. of Sunday evening. Till 25th June, 2006, as per the consent terms, the respondent-father allowed the petitioner mother to meet minor Akshada, but thereafter, the petitioner was not allowed even to meet minor Akshada under one or the other pretext. The petitioner found that failure to hand over custody of minor Akshada as per the consent terms for a period to which she was entitled to have custody of minor Akshada, is denial of custody and therefore, the petitioner-mother approached Police Commissioner of City of Vadodara on 25th June, 2006 as she was prevented to have custody of minor Akshada. It is the say of the petitioner that in the month of July, 2008, surprisingly, the petitioner came to know that minor Akshada who was studying in a reputed English Medium School in Vadodara has been shifted to one Boarding School, known as Sarvanaman Vidya Mandir. This Boarding school is located in village adjacent to town Bharuch of District Headquarter Bharuch. The petitioner received a cover and felt that she is given intimation that now, minor Akshada has been admitted in Boarding school at Bharuch and therefore, it would not be possible for respondent-father to comply with the conditions of the decree passed qua minor Akshada. The petitioner approached the said Sarvanaman Vidya Mandir, but she was told that she cannot be allowed to see minor Akshada, because, they allow only 4 visits in a year for which the school is issuing passes in advance which were handed over to the respondent-father. The petitioner attempted to have pass from the respondent, but she failed to get such pass. 7. Respondent-father, after the decree of divorce and arrangement worked out qua minor Akshada in consent decree of divorce, has remarried. The Court is also informed that when petitioner married to respondent-father, he was a divorcee. Respondent-father has remarried after divorce with petitioner on within a short time and prior to the date of admission of minor Akshada in the Boarding/Residential School at Bharuch. The Court is also informed that when petitioner married to respondent-father, he was a divorcee. Respondent-father has remarried after divorce with petitioner on within a short time and prior to the date of admission of minor Akshada in the Boarding/Residential School at Bharuch. After initiation of proceedings, at the request of the learned Counsel for the petitioner, the Court initially decided to call minor Akshada in the Court, but no formal personal interview was arranged. The Court also had asked the responsible person of the management of Boarding School where minor Akshada is at present studying and residing. According to the conversation with that person, school authorities were directed to see that arrangement is worked out so that the petitioner-mother can meet and interact with minor and pending these proceedings, two such opportunities have been given. 8. It is necessary to mention that petitioner-mother wrote a letter along with certain annexures to the Court and at that time, the parties were warned not to enter into personal correspondence and the papers are ordered to be kept on file. Respondent-father, in defiance of the instructions given, addressed one letter to the Court and the Court felt that he is trying to either pressurize the Court or intends to jump over the Bench without approaching the higher forum to get the matters transferred. It is very likely that he may have decided to see that these matters are adjourned beyond Summer Vacation and hearing lingers on and at least, the proceedings can be stalled for some time. In this background, I would like to reproduce hereunder certain orders passed on various dates earlier by this Bench in the proceedings initiated by petitioner-mother after formal order of issuance of notice on 12th February, 2009. Order dated 18.2.2009: “In compliance of the order passed by this Court, the respondent with minor child ‘Akshada’ is present today. The petitioner is also present. Shri Shalin Mehta, learned Counsel appearing for the respondent, submits that this is a case of material suppression of facts, but the anxiety of the respondent is that with a view to have amicable settlement, the respondent is ready to refer the matter to the Mediator. This submission is made on the instructions received by him from the respondent. Shri Shalin Mehta, learned Counsel appearing for the respondent, submits that this is a case of material suppression of facts, but the anxiety of the respondent is that with a view to have amicable settlement, the respondent is ready to refer the matter to the Mediator. This submission is made on the instructions received by him from the respondent. Indisputably, the child is studying in Boarding School and by seeking a special permission from the Management of the School, the child is brought before this Court today. The petitioner obviously is not knowing the schedule of the school, but it is not a matter of dispute that the parents of each child in the school are being permitted to meet and interact with their respective child, so that they can have satisfaction that their child studying in the Boarding School is well and they can also encourage the child for its further progress. The petitioner-wife is conferred a privileged right to meet and visit the child by way of a consent decree. The Court is aware that because of certain circumstances, the petitioner-wife was not in India and also out of Vadodara for some period, but now she is back and till she gets any assignment, she would like to visit the child and exercise privileges which have been given to her under a compromised decree of divorce keeping in mind the scheme of Section 26 of the Hindu Marriage Act. The respondent, therefore, is directed to give details through his learned Counsel Shri Shalin Mehta to the learned Counsel appearing for the petitioner about the schedule of the Boarding School where minor ‘Akshada’ is at present studying and the documents as to when the petitioner can meet and interact with the child, if the child so desires. The petitioner is ready to pay visit as per the schedule of the said institution because the academic year is likely to over within a couple of weeks or months. A special privilege has been conferred upon the petitioner under a compromised decree as to how she would spend time during vacation period. In this situation, necessary instructions if need be may be given to the Management of the said Boarding School, so that the Management of the said Boarding School permits the petitioner-mother to see the child and can provide necessary facilities for the purpose. In this situation, necessary instructions if need be may be given to the Management of the said Boarding School, so that the Management of the said Boarding School permits the petitioner-mother to see the child and can provide necessary facilities for the purpose. The petitioner is to be introduced with the institution so that anybody unknown may not enter the institution in the name of mother of the child. In view of the same, a photograph of the petitioner can also be sent to the institution. The petitioner is also ready for the same. The petitioner is directed to see that necessary formalities are completed at the earliest within a period of one week, if need be by paying special visit to the institution, where the child ‘Akshada’ is studying. A copy of this order be sent to the Boarding School where the child ‘Akshada’ is studying and if the institution has any reservations in complying with the wish and present order passed by this Court, the institution can revert back to the Court on the next date of hearing, so that appropriate further orders, if need be can be passed. To sum up, the following steps now shall be taken by the respective parties: (i) The Management of the Boarding School be informed by the respondent-husband about the contents of the present order. (ii) The respondent-husband will give no objection in writing that he has no objection as a father in arranging meeting of the minor child ‘Akshada’ with the petitioner-mother. (iii) The petitioner-mother be permitted to see the child during visiting hours of the institution. (iv) The learned Counsel appearing for the petitioner shall forward a postcard size photograph with a forwarding letter having his office stamp and signature on the reverse side of the photograph with a view to introduce the petitioner to the Boarding School. (v) The Management of the Boarding School during the visit of the petitioner with the child ‘Akshada’ shall provide some accommodation because initial visits of the petitioner would not be with normal like other parents who visit their child during visiting hours. The respondent as well as the learned Counsel appearing for the respondent shall also intimate the institution accordingly. Order and directions accordingly. The matter is adjourned to 06th March 2009. The respondent as well as the learned Counsel appearing for the respondent shall also intimate the institution accordingly. Order and directions accordingly. The matter is adjourned to 06th March 2009. To be notified separately at 04-00 p.m. A simple copy of the present order be given to the learned Counsel appearing for the parties.” Second order of the same date i.e. dated 18.2.2009 initiating suo motu proceedings: “Suo motu proceedings under Article 227 of the Constitution of India be initiated by calling R & P of Application No. 228 of 2008 from the concerned District Court. The Registry shall direct the concerned District Judge to see that the R & P is made available to this Court on the next date of hearing. Meanwhile, the operation of the order passed by the In-charge Second Civil Judge, Senior Division, Vadodara, in the said matter, shall remain under suspension as the Court is apprised of the fact that the said application has been preferred to see that the compromise decree arrived at between the parties under Section 26 of the Act needs variation and the prayer made in the petition pending before this Court i.e. Special Civil Application No. 1219 of 2009, has direct relevance with the factual matrix of the said case. The aforesaid suo motu proceedings are adjourned to 06th March 2009.” Order dated 6.3.2009: “The parties and the learned Counsel appearing for the parties are present. Shri Kamlesh Kawa, the responsible officer of Sarvanaman Vidya Mandir, a residential school, situated at Jhadeshwar near Bharuch (Gujarat), is also present. Shri Kamlesh Kawa has informed the Court that in compliance of the orders passed by this Court, the petitioner was given opportunity to meet her child Akshada. Normally, the parents are given three hours’, however, as father and mother, both were to meet the child, the petitioner-mother was given 1½ hour for the purpose. Shri Kamlesh Kawa also handed over a copy of the ‘Parents Handbook’, which is being given to all the parents who admit their children in the said school. He has pointed out about the discipline carved out by the institution. He further states that only on four occasions in a year, the parents can meet the child. This academic year is to expire on 01st May 2009 and the children will be able to go to their parents from 02nd May 2009 to 13th June 2009. He has pointed out about the discipline carved out by the institution. He further states that only on four occasions in a year, the parents can meet the child. This academic year is to expire on 01st May 2009 and the children will be able to go to their parents from 02nd May 2009 to 13th June 2009. They will have to return to the school, if they want to continue their study with the said institution, by 13th June 2009, so that they can easily settle and prosecute their study from 15th June 2009. Akshada Munshi, the minor child, at present is in Std.3 and she will be in Std.4 in the academic year 2009-2010. The Court is of the view that the petitioner-mother should be given an opportunity to meet and converse with the child since she has not availed that opportunity though carved out in a compromised decree because the arrangement of studies of Akshada Munshi has been made in a school near Bharuch, that too, in a residential school. Shri Kamlesh Kawa is informed by this Court that the petitioner-mother be given one opportunity on meeting her child Akshada Munshi on any Sunday which is convenient to the institution, keeping in mind the schedule of examination, which may be fixed by the institution; and the petitioner may be informed by the institution about the Sunday convenient to it i.e. the day on which the petitioner can meet the child in the institution. The arrangement which was made by the institution on the earlier occasion, according to me, was an adequate good arrangement and, therefore, similar arrangements may be made this time. The petitioner shall see that she does not carry any gift article which is not in accordance with the norms of the institution and the institution will be entitled to refuse to have such articles. After the order dated 18th February 2009 passed by this Court, the Court has received some papers from the petitioner through Post and that too, in a sealed envelope sent through courier and those papers are tagged with the file, so that the other side can go through it and if so desires, can respond to the contents of the same. If the contents are in the nature of submissions or clarification or advice, the respondent can take decision as to whether any formal written response is required to be filed or not. As per the law, normally the documents which are submitted to the Court in the form of affidavit, only are considered as valid pleadings by the parties. With this clarification, the papers have been tagged with the file of this matter. Though Shri Shalin Mehta, learned Counsel appearing for the respondent, has sought for time to file reply on behalf of Respondent Nos. 1 and 3 in the suo motu proceedings, the same shall not be considered as submission to the jurisdiction of this Court. It is always open for the parties to challenge the suo motu proceedings initiated before the competent forum. The proceedings under Section 26 before the learned Civil Judge, Senior Division, Vadodara, have been initiated by respondent-father seeking variation in the consent decree, more particularly, in reference to custody of the minor child Akshada. The papers of the said proceedings are called for here to avoid any conflicting decision simultaneously and to avoid complexity in the matter. The Court shall pass further orders as to with whom and for which period the minor child Akshada Munshi shall stay during her vacation period, on the next date of hearing, keeping in mind the totality of facts and circumstances of case and for that purpose, if need be, the Court may also seek presence of the minor child Akshada for determination of the period/ division of vacation period amongst parents. Before parting with the order, it is hereby clarified that the representation of Sarvanaman Vidya Mandir now is not require to attend the proceedings. However, it will be obligatory on the part of the said institution to intimate the petitioner about its convenient Sunday on which the petitioner can visit her child Akshada between 02-00 p.m. and 05-00 p.m. The institution is aware about the residential address as well as telephone numbers of the petitioner. The petitioner undertakes to send a xerox copy of the present order to the aforesaid Sarvanaman Vidya Mandir. A copy of the ‘Parents Handbook’ tendered today by Shri Kamlesh Kawa is taken on record. The matter is adjourned to 18th March, 2009. To be notified separately at 03-30 p.m. Direct Service is permitted.” Order dated 18.3.2009: “Today the parties are present. A copy of the ‘Parents Handbook’ tendered today by Shri Kamlesh Kawa is taken on record. The matter is adjourned to 18th March, 2009. To be notified separately at 03-30 p.m. Direct Service is permitted.” Order dated 18.3.2009: “Today the parties are present. On the first occasion, as the Court was requested by the learned Counsel appearing for the respondent that the present proceedings may be conducted in my Chamber, the proceedings are taken up for hearing in the Chamber. On 06th March 2009 also, the proceedings of the matter were conducted in the Chamber. Shri Amrish Pandya, learned Counsel appearing for the petitioner, and Shri Hemang Shah, learned Counsel appearing for the respondent, are present. It is submitted by Shri Hemang Shah, learned Counsel appearing for respondent, that Shri Shalin Mehta and himself, may be permitted to retire from the as learned Counsel appearing for the respondent-Sujit Munshi for their personal reasons. The request is accepted. Shri Shalin Mehta and Shri Hemang Shah, learned Counsel appearing for the respondent, are permitted to retire from the matter from the next date of hearing. So on the next date of hearing, the respondent can arrange for his counsel. The respondent, who is present in the Court, is made to understand that as now Shri Shalin Mehta and Shri Hemang Shah are permitted to retire from this case by this Court, and the respondent shall have to arrange for another counsel, if he so desires, to defend himself by an advocate. Passing of this order automatically shall not take out the school authorities from the obligation of arranging a meeting of the petitioner with the minor child Akshada. The Court is informed that till date the intimation in respect of a Sunday convenient to the institution, has not been received by the petitioner. It is expected that the Sarvanaman Vidya Mandir shall comply with the earlier directions issued by this Court in presence of its representative. I have received an R.P.A.D. letter dated 12th March 2009 along with annexures, addressed to me by the respondent, including the report of one consulting Pediatrician Dr.Anil Chikermane. The said letter dated 12th March 2009 along with annexures is taken on record and the same is ordered to be kept in the file of present petition. I have received an R.P.A.D. letter dated 12th March 2009 along with annexures, addressed to me by the respondent, including the report of one consulting Pediatrician Dr.Anil Chikermane. The said letter dated 12th March 2009 along with annexures is taken on record and the same is ordered to be kept in the file of present petition. When this matter was taken up for hearing on 06th March 2009, the petitioner in presence of all the concerned persons, including the respondent, was asked not to address any letter directly to the Court. The displeasure of the Court was also expressed saying that such letters are treated as implied attempt to influence the Court. All the papers received with the letter addressed by the petitioner on earlier occasion, were decided to be kept on record, so that the learned Counsel appearing for the respondent can read the contents of the letter, notes and other details and after perusing those papers can make himself aware. The learned Counsel defending the respondent may not feel anything like hide and seek game on account of the letter addressed to the Court by the petitioner. It is a matter of great shock and surprise that the respondent claiming to be an educated person has committed similar error, perhaps intentional, by addressing the aforesaid letter dated 12th March 2009. The plain reading of the letter takes me to a conclusion prima facie that the respondent intends to put pressure on the Presiding Judge of this Court i.e. myself, so that the Court may leave the matter or may say something, under pressure in favour of the respondent. This is a case where the petitioner has approached this Court with a grievance along with other grievances that he may have with third party. The respondent has conveniently shifted her minor child Akshada to Bharuch, so that the petitioner may not see the minor child or can get consent decree executed conveniently, though a specific right was created in her favour in a compromised decree, taking the shelter of one event that the petitioner had left India for some short span of time. The respondent has conveniently shifted her minor child Akshada to Bharuch, so that the petitioner may not see the minor child or can get consent decree executed conveniently, though a specific right was created in her favour in a compromised decree, taking the shelter of one event that the petitioner had left India for some short span of time. True it is that independent proceedings under Section 26 of the Hindu Marriage Act have been initiated to get modified the consent decree passed between the parties, however, till date the compromised decree is an enforceable order and, therefore, it appears that the respondent may have decided to adopt unhealthy tactics of addressing letter of the nature which has been received by this Court by R.P.A.D. It is not a matter of dispute that the aforesaid letter dated 12th March 2009 is received from and written by Respondent No. 1. This act of respondent, if the letter is read as it is, is nothing but an attempt to hamper the smooth hearing of the case and a Presiding Officer can be placed under embarrassment making indirect allegations. Such a conduct is prima facie contemptuous and, therefore, necessary proceedings in such or similar cases should be initiated and, therefore, this Court is inclined to initiate the contempt proceedings against the respondent herein, Suo Motu. The respondent herein has tried to suggest indirectly that as respondent had some dispute or grievance with one Shri Haldar, Officer of the State Government serving in I.A.S. Cadre, and, therefore, the proceedings may have taken present shape and that which the respondent is not able to understand. This impliedly suggests that the proceedings before this Court are being conducted, perhaps according to respondent, on account of that officer i.e. Mr. Haldar. As such in the present petition, the question of difference of opinion or quarrel between the petitioner and Mr. Haldar has no relevance. Welfare of the minor child, Akshada, ultimately is of paramount consideration. This impliedly suggests that the proceedings before this Court are being conducted, perhaps according to respondent, on account of that officer i.e. Mr. Haldar. As such in the present petition, the question of difference of opinion or quarrel between the petitioner and Mr. Haldar has no relevance. Welfare of the minor child, Akshada, ultimately is of paramount consideration. In such or similar cases and when the Court is aware that the respondent has married to one another lady, it is the duty of the Court to know the status, heath, age, education and other aspects of the lady who married with the respondent after divorce with the petitioner, because relation between the petitioner and the minor child Akshada would be of mother and daughter, whereas the relation between the minor child Akshada and present wife of respondent would be of daughter and a step-mother respectively. In such a situation, the Court is supposed to inquire into certain details. However, it appears that the respondent has skillfully attempted with some motive to tag the queries raised by the Court to the respondent and his quarrel/dispute with Mr. Haldar. The totality, therefore, has taken me to a decision that the contempt proceedings are required to be initiated against the respondent. The Registry is directed to initiate Contempt of Court proceedings against respondent herein. A copy of the present order as well as a xerox copy of the aforesaid letter dated 12th March 2009 addressed by the respondent herein received by this Court, be sent to the Bench taking up Contempt matters, after obtaining appropriate orders from Hon’ble the Chief Justice, if need be. At the outset, it is relevant to note that as per the Roster, number of matters are being listed everyday and the present dispute being a dispute between the litigants who were once husband and wife and as there was scope to call minor child Akshada in the Court, it was rightly submitted by Shri Shalin Mehta, learned Counsel appearing for the respondent, that instead of open Court room, the proceedings may be heard and decided in the Chamber, otherwise the parties may not be able to place their say satusfactorily, more particularly, when the allegations and counter-allegations against each other (petitioner and respondent) are of sensitive nature, and the suggestion was accepted at the instance of respondent. As the learned Counsel appearing for the respondent are not able to make submissions on merit today, it would not be either proper, justified or appropriate to pass further orders in reference to the regular meetings further of the petitioner with the minor child Akshada and fixation of time table of meeting of minor child Akshada and petitioner during school vacation hearing needs to be adjourned. This is a case where possibly this Court even can direct the respondent to see that the minor child Akshada is again admitted in one of the schools at Vadodara City, so that the purpose of compromised decree may not get frustrated or defeated, however, such an order normally should be passed after affording all the opportunities to the other side and, therefore, today the Court is not inclined to pass any orders in this regard though the same is pressed by Shri Amrish Pandya, learned Counsel appearing for the petitioner. Hence, in the interest of justice, the matter is adjourned to 13th April 2009.” Order dated 13.4.2009: “Heard Mr. Pandya, learned Advocate for the petitioner and Mr. Dipesh Shah, learned Advocate for the respondent-husband - father of the minor - Akshada. Mr.Dipesh Shah, has submitted that after retirement of Mr. Shalin Mehta, as Advocate for the respondent, he has instructions to appear for respondent and he has filed his formal appearance today. He was anxious to have a copy of the order passed by this Court in SCA No. 1219 of 2009 on 18/03/2009, but as the same was not transferred to the computer section, Mr. Shah could not obtain the copy of that order. Now the order is available, as due to administrative reason the said order could not have been transferred by the concerned Stenographer to the computer section, however the said order was dictated in presence of the parties and the learned Advocates appearing for the parties and parties were also aware about the said order and contents thereof. It is rightly submitted by Mr. Shah that he may be given some time, as he is appearing for the first time in these matters and therefore at his request now both these matters are adjourned to 24/04/2009. Registry is directed to list both these matters separately on 24/04/2009 at 3:30 p.m.” Order dated 29.4.2009: “Minor child [Akshada] is before the Court. Shah that he may be given some time, as he is appearing for the first time in these matters and therefore at his request now both these matters are adjourned to 24/04/2009. Registry is directed to list both these matters separately on 24/04/2009 at 3:30 p.m.” Order dated 29.4.2009: “Minor child [Akshada] is before the Court. I had conversation with her for some minutes and have taken mental note of the same. Affidavit in reply along with annexures filed by respondent-father is taken on record. Registry is directed to list this petition for further submissions by Mr. Dipen Shah, learned Counsel appearing for the respondent. This petition be listed on 11th May, 2009 along with suo motu proceedings initiated by the Court i.e. Special Civil Application No. 2031 of 2009.” 9. As reflected in the orders, minor Akshada was called and I had interacted with her and found that this is a case of ear-poisoning; that she was brought directly from the Boarding school in the company of her father; otherwise, minor girl was found normal, intelligent and smart enough to grasp the instructions that may be given to her. But the Court was able to assess the movement of the eye-ball and approach of the minor while responding to the questions asked in reference to mother that it is not eternal wish of minor that she does not like the petitioner, but her response was that she does not want to go to mother. However, minor Akshada was not able to explain or state the reasons as to why she is replying so. There is no controversy between the parties that the meeting between the mother and minor child had remained smooth for long and on some occasions, the respondent-father had sent minor Akshada to petitioner-mother under some reluctance. I am told that some correspondence had also taken place, but it would not be proper for the Court to comment on it as as the same may be found relevant in the event of trial. 10. There are allegations and counter-allegations. One allegation against the petitioner-mother is that she had married to one person and for that purpose, she had gone to Tanzania and as her marriage was not in accordance with law, she was forcibly deported to India. It is contended that no rejoinder-affidavit would go to the root of the merit. 10. There are allegations and counter-allegations. One allegation against the petitioner-mother is that she had married to one person and for that purpose, she had gone to Tanzania and as her marriage was not in accordance with law, she was forcibly deported to India. It is contended that no rejoinder-affidavit would go to the root of the merit. But on careful reading of the papers available on record, stand of the petitioner-mother is clearly emerging from one document attached with the petition, i.e. the application dated 25th June, 2008 addressed to the Police Commissioner of City of Vadodara and other documents attached with the list of documents. Statement of petitioner-mother was recorded by the Police Sub Inspector, DCB Police Station, Vadodara on 22.12.2008 which is much prior to filing of the present proceedings. It is possible to infer reasonably at this stage that the Police Commissioner must have asked his subordinates to inquire into the matter keeping in mind the sensitivity of the issue and the nature of controversy. Though dispute is completely of civil nature, but sometimes, life and safety of minor is found at stake in our society. So, the statements of both the persons, i.e. the petitioner-mother and respondent-father were taken and which are available on record. I have gone through the said documents. I have also gone through the reply affidavit filed and other contentions of the reply affidavit filed in both the proceedings and documents produced in support thereof. Here, I would like to reproduce language of one certificate which has been produced in bot the proceedings. The said certificate is dated 23rd March, 2007 issued by one Dr. Anil S. Chikarmane, Consulting Pediatrician. The same is reproduced hereunder:— “21.3.2007 Report of- Baby Akshada Sujit Munshi This child was seen by me in 2004 and again in 2006. On both these occasions she was brought for symptoms of Enuresis and Temper-tantrums. History revealed severe parental discord with verbal altercations taking place in her presence. This made the child insure and she manifested the symptoms of insecurity in the form of enuresis and temper-tantrums. She had to be put on a tab-Tryptomer [amitriptyline] along with counselling the parents to shield her from the discords. Following the divorce of the parents with the custody of the child going to her father’s family side she has improved. She is now off treatment. Periodic checking would be advisable. She had to be put on a tab-Tryptomer [amitriptyline] along with counselling the parents to shield her from the discords. Following the divorce of the parents with the custody of the child going to her father’s family side she has improved. She is now off treatment. Periodic checking would be advisable. Symptoms of reoccurrence should be brought to the knowledge of the undersigned. Stress should be absolutely avoided. Suggest keep her away as far as possible from stress generating social problems and elements. Preference should be given like boarding schools education or change of place and environment. Sd/- Dr.A.S. Chikermane M.D. Consulting Pediatrician Pratap Road, Baroda. REG MMC. 64099.” The said certificate is dated 23rd March, 2007, i.e. prior to sending minor Akshada to Boarding School at Bharuch, which is at a distance of about 70 to 80 kilometers from Vadodara. No proceedings were initiated under Section 26 of the Hindu Marriage Act seeking interim relief because of psycho-physical condition of minor Akshada as diagnosed by Dr. Chikermane and consent decree may not be complied with in stricto senso till minor Akshada becomes normal. It would not be proper to comment on whether the above doctor, from the medico-legal point of view, was authorized to issue such certificate or to sign the report in reference to minor Akshada. Whether the doctor has exceeded his authority as medical expert would be again a question of appreciation of evidence. But it is possible to prima facie infer that this certificate appears to have been obtained for certain purpose and therefore, the Court is inclined to send copy of this certificate to the Medical Council of India along with the copy of consent decree drawn between the parties in divorce proceedings initiated between them and the fact that minor Akshada had visited the petitioner mother conveniently for certain period and had also visited the petitioner-mother in the later part of 2007. The doctor had seen minor Akshada in the year 2004 and again in the year 2006, but for the reasons best known to him, he issued certificate on 21st March, 2007. There is no reference as to the case number in the certificate cum report issued by the doctor. The doctor had seen minor Akshada in the year 2004 and again in the year 2006, but for the reasons best known to him, he issued certificate on 21st March, 2007. There is no reference as to the case number in the certificate cum report issued by the doctor. It is also strange that if the child was feeling comfortable with the respondent-father, then, why she was sent to a Boarding School located at a distance of about 80 kilometers also needs some consideration, which according to me is relevant in the resolution of the present litigation. 11. I have heard Mr. Amrish K. Pandya, learned Counsel appearing for the petitioner-mother and Mr. Dipen Shah, learned Counsel for the respondent-father in both the proceedings. 12. Here it would be necessary to mention that discussion as to facts, submissions made and the law referred to by the learned Counsel for the parties may not be treated as relevant in the proceedings if initiated and conducted against the respondent-father, because, same is altogether a different issue. [a] Say of Mr. Pandya for the petitioner is that in absence of any order passed by the competent Court and without intimating the petitioner-mother, denial to hand over custody of minor Akshada to the petitioner-mother by discontinuing company of minor Akshada with the petitioner mother, be construed as taking away custody or denial of custody, more particularly, to mother who is also a natural guardian. [b] On remarriage of respondent-father the atmosphere of the family of respondent, on account of remarriage must have changed substantially, perhaps the petitioner could have approached the competent Court under Section 26 of the Hindu Marriage Act to have custody of minor Akshada permanently offering her visitation right like her to the respondent-father in changed circumstances and variation could have been sought for by her, because, interest and welfare of minor is always a matter of paramount consideration. [c] It would be wrong to submit that application under Section 25 or Section 12 would not be maintainable merely because, parties were once before the competent Court having jurisdiction to decide as to custody of minor child as the parties are Hindus and they themselves have settled the matter. [c] It would be wrong to submit that application under Section 25 or Section 12 would not be maintainable merely because, parties were once before the competent Court having jurisdiction to decide as to custody of minor child as the parties are Hindus and they themselves have settled the matter. So, only execution of the order could have been sought for, because, removal of minor from territorial jurisdiction of Vadodara behind the back of the petitioner-mother is misconduct or behaviour with mala fide intention and the same gives independent right to a party aggrieved. In present case, say and feeling of the mother is that the minor has been removed or taken away from the umbrella of one of the natural guardians whose right has been crystallized, by the order of competent Court i.e. under compromise decree. Mr. Pandya has taken me through the relevant condition No. [vi] of the compromise decree between the parties. Said condition No. [vi] reads as under:— “The parties hereto agree that the timetable to have the custody of both of them as divided between Monday to Friday and Friday to Sunday shall be strictly adhered to on the basis of English Calendar week and both the parties hereto agree that they shall discharge their duties father or mother guardian or minor Akshada. It is agreed by both the parties that in the course of time of their custody, they shall provide the most beneficial healthy and positive atmosphere and both the parties hereto agree that they will actively contribute for the best and positive social, personal, emotional and physical growth of minor Akshada for all the times to come. That both the parties hereto agree that both having decided to continue to extend parental and guardianship duties for ideal growth of minor Akshada, both of them shall extend all positive support and shall discharge their duty respectively in the best possible manner and to preserve the highest and paramount interest of minor Akshada in all walks of her life.” The fact that unless consent decree is varied, the respondent was not supposed to send minor child out of Vadodara and that too, by making such arrangement to see that the petitioner-mother cannot meet minor Akshada may result into inconvenience. [d] The application preferred before the District Court cannot be equated with plaint within the meaning of provisions of Code of Civil Procedure and the petition ought not to have been rejected for illogical and unconvincing reasons and the reasons not sustainable in law. On the contrary, learned Judge ought to have held that there is a triable issue and the petitioner may ultimately fail on merit. As such, there was no legal infirmity in the petition and, therefore, the order under challenge is bad. Restoration of right conferred on the petitioner under the above condition-[vi] of the compromise decree when had become practically impossible, execution was one of the modes. But the mode adopted by the petitioner is also legal mode as the minor Akshada was removed out of territorial jurisdiction of the Court which could have executed the decree efficiently and smoothly. [e] The petitioner has explained the circumstances under which she had left for Tanzania and what measures were taken by her about the care and welfare of minor before leaving for Tanzania. These facts were very much available or could have been placed before the Court. During the hearing of the application on merit, necessary proof also could have been produced. It would not be either logical or legal to accept that she had surrendered her right to have custody of minor for the period determined by the parties in compromise decree. On her return, the petitioner could have been given custody of minor Akshada for her enjoyment and company, but when she failed, she started taking steps immediately. This conduct ought to have weighed with the lower Court and the contents of the application only could have been looked into. Point of defence placed by the respondent by way of application under Order VII Rule 11 of CPC was not required to be considered and the rejection of the application Exhibit 1, ultimately, has resulted into rejection of application Exhibit 5 if the order under challenge is read in its original tenor. Order of rejection of application under Order VII Rule 11 of the Code is appealable as per the scheme. But according to Mr. Pandya, scheme of Rule 11 of Order VII would not be applicable in the proceedings initiated under Section 25 and/or 12 of the Guardian and Wards Act. Order of rejection of application under Order VII Rule 11 of the Code is appealable as per the scheme. But according to Mr. Pandya, scheme of Rule 11 of Order VII would not be applicable in the proceedings initiated under Section 25 and/or 12 of the Guardian and Wards Act. For the sake of argument, even if it is accepted that the provisions would apply, even then, considering the facts and circumstances, the appeal ought not to have been treated as “alternative efficacious remedy” and the power of superintendence can be exercised by the Court to see that litigation is put back on track. The respondent ought to have clarified to the institution wherein the minor girl was admitted, about the privilege conferred on the petitioner-mother under the compromise decree, i.e. decree passed by the competent Court and also ought not to have denied handing over of passes to petitioner-mother on her return from Tanzania. On account of visit to any foreign country for any social or any other reason by the petitioner mother if she is unable to exercise her right, it would not make her disentitled to have custody of minor for given period and the principle of waiver or estoppel would not have any application. [f] Wish of the minor is relevant, but her parents have crystallized their respective rights when the minor child was intelligent enough and had visited the mother till 2007, more particularly, up to time when she was arranging her visit to Tanzania. It is not the say of the petitioner that she may be appointed as guardian of the minor child and her custody may be handed over to her permanently. Welfare of the minor was considered by the petitioner and respondent and the same was recognized by the Court while drawing compromise decree. There is no health problem with mother or any person in her parental home. The petitioner as well as her family members are well educated and are residing in a reputed area of city of Vadodara. So, personal allegations made against the present petitioner by the respondent is nothing but an afterthought and concoction have been made with a view to save the skin of a wrong-doer father. The petitioner as well as her family members are well educated and are residing in a reputed area of city of Vadodara. So, personal allegations made against the present petitioner by the respondent is nothing but an afterthought and concoction have been made with a view to save the skin of a wrong-doer father. Today the say of minor girl would not carry much weight as she has remained continuously with her father and was also away from the mother in Boarding School and respondent-father and his family had opportunity to poison the ears of minor. When rights are determined, prejudicial say would not make the present petitioner mother disentitled to have company and custody of minor Akshada. [g] It is submitted by Mr. Pandya that proceeding initiated under Section 26 of Hindu Marriage Act at Vadodara by respondent-father is nothing but an attempt to defeat the proceeding initiated by the petitioner in the District Court and also to see that the compromise decree may turn into an order that can be kept out of the effect of legal execution, therefore, the said proceedings are required to be terminated. As the respondent was not able to challenge the decree being compromise decree by way of an appeal, he has adopted to approach the Court under Section 26 of the Hindu Marriage Act with mala fide intention. He may have apprehended that the petitioner, on his remarriage may claim custody of minor permanently in welfare of minor child, at least, till time she marries if she so desires. Remarriage of respondent-father automatically would not disqualify him to continue as guardian of minor Akshada. But this fact may have been looked into by the Court while dealing with the proceeding initiated by the petitioner and therefore only, these proceedings have been initiated as an afterthought which are in subsequent point of time. Proceedings under Section 26 of Hindu Marriage Act have been initiated in the month of December, 2008, i.e. after about two months from the date of passing of the order by the learned lower Court under challenge, i.e. after about six months from the initiation of proceedings by the petitioner-mother before the District Court. Proceedings under Section 26 of Hindu Marriage Act have been initiated in the month of December, 2008, i.e. after about two months from the date of passing of the order by the learned lower Court under challenge, i.e. after about six months from the initiation of proceedings by the petitioner-mother before the District Court. Therefore, it is submitted that the observation that the proceeding initiated by the petitioner-mother is not bonafide litigation, requires to be turned down in exercise of extraordinary power of superintendence of the Court and no party can be subjected to mala fide litigation. 13. [a] Mr. Dipen Shah has taken me through the scheme of Section 25 and Section 12 of the Guardian & Wards Act. It is submitted that if provisions of the above sections are read as they are, there was no scope for the petitioners to approach the Court, because, guardianship issue was resolved by the parties themselves and the respondent-father was appointed as guardian and minor or ward cannot be said to have been removed from lawful custody of guardian, because, petitioner-mother had never remained guardian. It is not the say of the petitioner that when minor was in the company of the petitioner, she has been forcibly snatched away. It would be beneficial to reproduce relevant Sections 12 and 25 of the Guardian and Wards Act. The same read as under:— “Section 12. Power to make interlocutory order for production of minor and interim protection of person and property.—[1] The Court may direct that the person, if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. [2] If the minor is a female who ought not to be compelled to appear in public, the direction under Sub-section [1] for her production shall require her to be produced in accordance with the customs and manners of the country. [2] If the minor is a female who ought not to be compelled to appear in public, the direction under Sub-section [1] for her production shall require her to be produced in accordance with the customs and manners of the country. [3] Nothing in this section shall authorise— [a] the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or [b] any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.” Section 15: Appointment or declaration of several guardians.—[1] If the law to which the minor is subject admits of his having two or more joint guardians of his person or property or both, the Court may, if it thinks fit, appoint or declare them. [4] Separate guardians may be appointed or declared of the person and of the property of a minor. [5] If a minor has several properties, the Court may, if it thinks fit, appoint or declare a separate guardian for any one or more of the properties.” Section12 deals with interim custody and the lower Court has rightly stated that if the petitioner-mother was aggrieved by the conduct of respondent-father, she ought to have preferred execution petition to see that the decree is executed, but application under Section 25 is not maintainable. [b] It is argued that the petitioner had alternative efficacious remedy to challenge the order passed below Exhibit 11 and the present case does not fall in the category of case of extraordinary nature where this Court can entertain the petition preferred under Article 227 and/or Article 226 of the Constitution. Mr. Shah has also drawn attention of this Court to the provision of Article 227 of the Constitution of India, which reads as under:— “Article 227:—Power of superintendence over all courts by the High Court:—[1] Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Mr. Shah has also drawn attention of this Court to the provision of Article 227 of the Constitution of India, which reads as under:— “Article 227:—Power of superintendence over all courts by the High Court:—[1] Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. [2] Without prejudice to the generality of the foregoing provisions, the High Court may— [a] call for returns from such courts; [b] make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and [c] prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. [3] The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under Clause [2] or Clause [3] shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. [4] Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any courts or tribunal constituted by or under any law relating to the Armed Forces.” When the petitioner has not replied by way of rejoinder affidavit qua allegations made against her as to her remarriage and her act of leaving India for Tanzania is nothing but an attempt to settle down in Tanzania is the say of the respondent-father. This Court cannot legally exercise powers vested in Article 227 and the parties are required to be left to the original Court. Dealing with original cases by calling them in High Court under suo motu proceedings also would not be proper and therefore, suo motu proceedings may be terminated and the matter be sent back to the trial Court for decision on merit. [c] The words; “Removal of” used in the scheme of Section 25 referred to hereinabove, would not apply qua the facts of the present case. Section 19 of the said Act also will have some effect and will and wish of the minor cannot be ignored. [c] The words; “Removal of” used in the scheme of Section 25 referred to hereinabove, would not apply qua the facts of the present case. Section 19 of the said Act also will have some effect and will and wish of the minor cannot be ignored. When minor has expressed her disinclination before this Court to go to mother even for a very short period, it makes the petitioner disentitled to have even temporary custody. When it is not a matter of dispute that minor Akshada is intelligent enough, the District Court could not have passed orders mechanically that minor girl be brought back to Vadodara or mother may be facilitated to have custody, company and love of minor Akshada, and there was no use to continue the proceeding. Therefore, the lower Court has rightly observed that the application is not sustainable and, therefore, the same is required to be rejected, more particularly, keeping in mind the scheme of Section 19 of the said Act, because, respondent is father and no person other than respondent-father could have been appointed as guardian of minor. When the order passed below application Exhibit 11 is legal and logical order, this Court may not interfere with the order and petitioner can be directed by this Court to approach the Court who has passed the decree so that the petitioner-mother can get order of execution. Mr. Shah has drawn attention of the Court to one decision in the case of Nil Ratan Kundu and Another vs. Abhijit Kundu, reported in 2008 [9] Supreme Court Cases 413, wherein, the Apex Court has observed as under:— “65. The Court stated; “If ultimately the petitioner (father) is convicted and sentenced in that case, the OPs (maternal grand-parents of Antariksh) will have the scope to inform the fact to the Court and to pray for change of the Court’s decision”. 66. The Court made a ‘comparative study’ and observed that it had ‘no hesitation’ in holding that the present and future of Antariksh would be better secured in the custody of his father. xxx xxx xxx “71. Now, it has come in evidence that after death of Mithu (mother of Antariksh) and lodging of First Information Report by her father against Abhijit (father of Antariksh) and his mother (paternal grand mother of Antariksh), Abhijit was arrested by police. xxx xxx xxx “71. Now, it has come in evidence that after death of Mithu (mother of Antariksh) and lodging of First Information Report by her father against Abhijit (father of Antariksh) and his mother (paternal grand mother of Antariksh), Abhijit was arrested by police. It was also stated by Nil Ratan Kundu (father of Mithu) that mother of accused Abhijit (paternal grand mother of Antariksh) absconded and Antariksh was found sick from the house of Abhijit.” It is submitted that the above observation would help the respondent. [d] While submitting in reference to suo motu proceedings, Mr. Shah has placed reliance on a decision of the Apex Court in the case of Miss Maneck Custodji Surjarji vs. Sarafazali Nawabali Mirza, reported in AIR 1976 SC 2446 and has submitted that the petitioner having alternative efficacious remedy, she should not be permitted to invoke writ jurisdiction of this Court under Article 226 or 227 of the Constitution and she may be relegated back to lower Court to get the decree executed. Facts of the decision are materially different. Even the said decision observes that in a given case powers under Article 227 can be exercised. 14. I have considered the rival contentions and legal provisions pointed out by the parties and also the decisions cited. The Court is of the view that the issue of appointment of guardian was not there before the learned District Judge. So, argument based on this count, more particularly, projecting the alleged wish of minor in reference to Section 25 read with Section 19 would not help the respondent-father, because, by consent, the petitioner -mother has agreed that child shall remain in custody of respondent-father. Father and mother, both are natural guardians and when father is there, scope of appointment of a person other than the father as guardian was not even required to be considered in the petition in question. It was also not the prayer before the learned lower Court. Father and mother, both are natural guardians and when father is there, scope of appointment of a person other than the father as guardian was not even required to be considered in the petition in question. It was also not the prayer before the learned lower Court. Undisputedly, the petitioner-mother is also natural guardian and disinclination shown by respondent-father to hand over minor Akshada to the petitioner-mother or refusal in this regard, and the conduct of the respondent-father of sending minor Akshada in the Boarding School at a distance of 80 kilometers away from Vadodara, though Vadodara is a known educational hub, amounts to removal of minor from the custody and natural guardianship of petitioner-mother which was crystallized under the compromise decree between the parties. The respondent-father had complied with the order passed by the Court in divorce proceeding and had accepted the right of the petitioner-mother. However, the above conduct of the respondent-father appears to be mala fide conduct. He sent the minor in Boarding School at a distance of 80 kilometers and whether the same was the result of his remarriage or there was some other reason would be a question that can be determined on the strength of the evidence that may be led by the parties and so also by the conduct of the parties. But there was an arguable case for the petitioner-mother to show that refusal to hand over custody of minor Akshada on return of petitioner-mother from Tanzania and arrangement to remove the minor Akshada behind the back of the petitioner-mother from Vadodara to Bharuch, i.e. out of the territorial jurisdiction of learned Civil Judge who passed the decree, amounts to removal of minor girl. Scheme of Sub-section [1] of Section 25 should not be interpreted that removal must be physical, forcible and from the custody of the person who is appointed as a guardian of a person. Welfare of minor Akshada was decided by the parties themselves while entering into compromise decree. On the contrary, impression created in the mind of the Court is that firstly, the respondent-father got decree of divorce on mutual consent by tempting the petitioner-mother that she will be able to enjoy custody, company and love of minor Akshada for about two and half days in a week and for reasonable given period during Summer Vacation. Father and mother, both are working. Father and mother, both are working. Divorcee mother who has to struggle for her own bread and for other intellectual activities, may have agreed to the proposal that minor Akshada may remain in the custody of respondent-father. She must have been tempted or induced to do so and after getting divorce and remarriage thereafter, the respondent-father appears to have decided to take hostile turn qua his previous commitment made in the compromise decree. In response to the query raised by the Court, Mr. Dipen Shah has accepted before the Court that the present wife of the respondent-father may not be able to deliver a child. It is very likely that this may have tempted the respondent to take hostile turn. But it is not necessary for the Court to make comment in this regard. When the proceeding had taken place earlier, certain facts were discussed and some of them are reflected in the earlier orders passed by this Court as referred earlier. Impression created in the mind of the Court is that school management is also under the influence or obligation of the respondent and therefore only, the Court was compelled to call the school management. Certificate issued by the school authorities which is produced in the present proceeding by the respondent is dated 16th February, 2009 and this certificate also appears to have been obtained so that the same can be used against the petitioner. Opinion expressed by either Teacher or Principal of the school is not reflected in the letter tendered by the respondent. The same is signed by the Administrator. The person who was called before the Court was from Managerial cadre and the same is based on the talks that had taken place between Administrator Kalpesh Kava, representing the school administration and the respondent. This seems to be an attempt to prevent the petitioner from going to/visiting the Boarding School regularly and to create an embargo in the proceeding initiated by the petitioner so that the Court may also become reluctant in passing orders in reference to her visiting right to the Boarding school. Dates in certain documents sometimes may lose importance as antedoting is also not possible on such documents. Opinion of Counseller or teacher or principal is not there on record. 15. Dates in certain documents sometimes may lose importance as antedoting is also not possible on such documents. Opinion of Counseller or teacher or principal is not there on record. 15. True it is that scheme of Section 26 of the Hindu Marriage Act empowers the Court to entertain proceedings so that the Court can vary, alter or modify the order as to custody of minor children. But scheme of Section 26 is ancillary and therefore, while resolving matrimonial dispute, the Court can simultaneously resolve the dispute qua custody of minor and that by itself would not make a party disentitled to approach a competent Court under the Guardian and Wards Act. The petitioner had approached the District Court for limited purpose. Sub-section tion [3] of Section 25 would not help the respondent though it is so argued by Mr. Shah, because, the said provision deals with altogether a different aspect. Therefore, according to me this is a case which would fall in the category where the petitioner can legitimately say that the minor to whose custody she was entitled for a given period, has been removed and therefore, some interim orders are required to be passed, because, the District Court has power to make interlocutory order for production of minor and orders as to interim protection of person and property etc. Powers under Section 12 of the said Act are vast and ultimately, the petitioner was praying for temporary custody for a period determined by the competent Civil Court while drawing decree of divorce realising that the minor has been removed from Vadodara to Bharuch. 16. There is no strength in the argument of Mr. Shah that original proceedings, if are decided by this Court, then, the petitioner would lose right to file appeal and therefore, the parties should be relegated qua proceedings initiated by the respondent under Section 26 of the Hindu Marriage Act, because, it is possible for the Court to terminate the proceedings in exercise of constitutional power vested in the Court under Article 227 of the Constitution saying that the same has been initiated with mala fide intention and with a view to defeat the decree drawn earlier. Litigation is initiated only for the purpose to see that the proceeding initiated by the present petitioner under Section 25 read with Section 12 of the said Act also gets hampered and the act of initiating the said proceeding is nothing but an afterthought and the result of ill-advice dragging legitimate mother of minor Akshada into misdirected litigation. I would like reproduce the observations made by the Apex Court from the decision cited by Mr. Shah in the case of Miss Maneck Custodji Surjarji [Supra] wherein, the Apex Court has observed as under:— “6. It is very difficult to appreciate the reasoning behind the order made by the High Court. It is to say the least an extraordinary order which flies in the face of law and judicial procedure. The respondent had clearly a legal remedy available to him by way of an appeal against the decree of the City Civil Court and this remedy was not only adequate but more comprehensive than the one under Article 227 of the Constitution.” xxx xxx xxx “It must be realized that the jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked.” The above observation, on the contrary, says that in a given case or a case of grave nature, the Court can exercise powers of superintendence under Article 227 and also constitutional powers vested in the Court under Article 226 of the Constitution irrespective of alternative remedy. 17. Facts of the present case, conduct of the present respondent and the fact that minor Akshada has been sent out of Vadodara district to Bharuch at a distance of 80 kilometers creating lot of hurdles and inconvenience to petitioner-mother even if she intends to see only the face of minor Akshada, has put this case in to a case where remedy of appeal as pointed out by Mr. Shah contemplated under the Code of Civil Procedure does not appear to be efficacious alternative remedy available to the petitioner. Minor Akshada is sent to Boarding School and Brochure of the school is available on the record. Therefore, virtually execution of the decree also has been made impracticable. Shah contemplated under the Code of Civil Procedure does not appear to be efficacious alternative remedy available to the petitioner. Minor Akshada is sent to Boarding School and Brochure of the school is available on the record. Therefore, virtually execution of the decree also has been made impracticable. If execution is filed, that also can be obstructed in the name of study, rules of the school administration and education of the minor child. Learned lower Court, while dealing with the application Exhibit 11 ought to have thought whether decree of visitation right could have been made effectively available that can be executed by the Court at Vadodara in efficient manner in child custody matter where such right has been crystallized by the Court if child is shifted and admitted in a Boarding School either at Dehradun or Kodaikenal. Learned Judge, while passing order has not applied mind in appropriate and judicious manner. For short, I am of the view that the judgment relied upon by Mr. Shah and other such decisions of this Court and Apex Court would help the petitioner and also would help this Court in terminating the proceedings initiated by the respondent in Vadodara Court under Section 26 of the Hindu Marriage Act. Photograph produced on record and shown to the Court shows that the petitioner-mother and minor Akshada were very happy and they were enjoying each other’s company till 31st October, 2007. The said photograph speaks volumes. It falsifies the certificate issued by the doctor and so also the certificate/letter issued by the school management. True it is that remarriage by itself would not make the respondent-father incompetent to have custody of minor Akshada. He can still remain guardian of minor Akshada and the petitioner does not dispute that. Her grievance is that on account of ear poisoning and her stay away from the minor Akshada has created hurdles in effective execution of right crystallized in the compromise decree on account of misconduct or mala fide behaviour of respondent-father. 18. For short, the Court is not accepting the submission that only appeal would lie as the application preferred by the petitioner-mother has been rejected as not maintainable. On the contrary, in view of the above set of facts, the Court finds that original proceedings are prima facie maintainable. 18. For short, the Court is not accepting the submission that only appeal would lie as the application preferred by the petitioner-mother has been rejected as not maintainable. On the contrary, in view of the above set of facts, the Court finds that original proceedings are prima facie maintainable. Respondent-father, if takes a plea as to maintenability of the application, then, it is possible for the lower Court to frame a particular issue as to maintenability of the proceedings. But on this count, applicant ought not to have been rejected under Order VII Rule 11 of Code of Civil Procedure. Though proceedings are substantive and are required to be tried as suit in the event of contest, but the issue of maintenability, for the reasons mentioned in the application Exhibit 11 is required to be entertained as independent issue of merit so that parties can make their submissions and lead evidence if there is scope of leading evidence in reference to the issue. 19. For the reasons aforesaid and from the total facts emerging from the reply affidavit filed and the statement recorded by police, copies whereof are available on record, Special Civil Application No. 1219 of 2009 filed by the petitioner requires to be allowed. In exercise of powers vested in the Court under Article 227 of the Constitution, the proceedings initiated by respondent at Vadodara Court under Section 26 of the Hindu Marriage Act are required to be terminated being litigation initiated with mala fide intention to defeat the decree against which the petitioner-mother could not have been able to prefer any appeal statutorily. On the contrary, this is a case where, petitioner-mother can initiate such and similar proceedings, if she so desires, on account of remarriage of respondent-father. 20. Special Civil Application No. 1219 of 2009 filed by the petitioner is allowed. Order dated 22.10.2008 passed below Exhibit 5 and 11 in Misc. Civil Application No. 1001 of 2008 by 5th Additional District Judge, Vadodara is hereby quashed and set aside. However, it will be open for the respondent-father to raise legal issue as to maintenability of the application and, therefore, question of maintenability of the proceeding is left open. 21. The Court is also inclined to direct the Registry to send copy of the certificate issued by Dr. However, it will be open for the respondent-father to raise legal issue as to maintenability of the application and, therefore, question of maintenability of the proceeding is left open. 21. The Court is also inclined to direct the Registry to send copy of the certificate issued by Dr. A.S. Chikermane, Consulting Pediatrician, Pratab Road, Baroda having Registration Number, being REG MMC 64099, to the Medical Council of India for determination as to whether by issuing certificate dated 21.3.2007, Dr. Chikermane has acted unethically and beyond his competence as medico-legal expert qua the subject involved in the matter, especially when he had not seen the minor Akshada after 31st October, 2007. The date of 31st October, 2007 is relevant, because, it is the day of photograph taken, wherein, minor Akshada and petitioner-mother are shown celebrating some birthday occasion. 22. It is further directed that the respondent-father, now, shall see that minor Akshada is admitted in a school at Vadodara, discontinuing her study from Boarding school, so that the petitioner-mother can enjoy and custody of minor Akshada regularly as per the decree of compromise. Crystalized visiting rights cannot be curtailed by misconduct. Therefore, the respondent-father is directed to do so, failing which, appropriate orders of initiation of proceedings of committing criminal contempt of Court shall be initiated. 23. Respondent-father is further directed to see that the consent decree qua custody of minor drawn between the parties on consent as was executed earlier till at least October, 2007, is executed and implemented and he shall cooperate with petitioner-mother in handing over the minor Akshada. 24. Respondent-father is further directed to arrange for stay of minor Akshada with petitioner-mother for second half of school Summer Vacation and from the next year, the parties can negotiate in this regard as to which part of school Summer Vacation shall be spent and enjoyed by minor Akshada with petitioner-mother. 25. The proceedings before the lower Court, i.e. Misc. Civil Application No. 228 of 2008 preferred under Section 26 of the Hindu Marriage Act in the Court of learned Civil Judge [S.D.] at Vadodara, are hereby terminated and the said proceedings are brought to an end without passing any orders as to cost. Application Exhibit 5 is allowed in the above terms. 26. Suo Motu proceedings, being Special Civil Application No. 2031 of 2009 are terminated and culminated accordingly. 27. Application Exhibit 5 is allowed in the above terms. 26. Suo Motu proceedings, being Special Civil Application No. 2031 of 2009 are terminated and culminated accordingly. 27. If the respondent-father fails in complying with the orders passed by the Court, then, it will be open for the learned District Judge, before whom the proceedings preferred under Sections 25 and 12 of the Guardian and Wards Act are pending, to exercise jurisdiction vested in the Court under Sub-section [2] of Section 25 of the said Act and to secure custody of minor Akshada and to issue warrant for the purpose. Direct service permitted.