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2010 DIGILAW 276 (ORI)

Sk. Masiullah v. Farhat Siddique

2010-04-13

A.S.NAIDU, B.N.MAHAPATRA

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JUDGMENT A.S. NAIDU, J. : The interim order dated 2.1.2009 passed by learned Judge, Family Court, Cuttack in C.P. No.529 of 2005 directing the petitioner to produce his minor daughter in Court so that she can be handed over to opposite party is assailed in this writ petition. 2. Sworn of unnecessary details, the short facts are as follows : Petitioner had married the opposite party on 11th February, 2000 and out of their wed-lock a female child was born. Soon thereafter, dissentions cropped up between the parties and the opposite party-wife took divorce from the petitioner-husband on 27th September, 2004. According to the petitioner, at the time of divorce, a ‘Faisalama’ was executed between the petitioner and the opposite party and it was agreed by the opposite party-wife that the child will remain with the petitioner-husband for the better welfare. It was also agreed that a sum of Rs.50,000/- would be paid by the husband. While the matter stood thus, in the year 2005 the opposite party filed a petition under Section 352 of Mohammadian Law read with Section 7(g) of the Family Court Act with a prayer to appoint her as mother guardian of the minor daughter Zehat Parveen, which was registered as C.P. No.529 of 2005. In the said proceeding, a petition was also filed to grant interim custody of the child. Learned Judge, Family Court by order dated 2.1.2009 has allowed the interim petition and direct¬ed the petitioner-husband to produce the child in Court for handing over to the opposite party-wife. Being aggrieved by the said order, the petitioner-husband has approached this Court. 3. It appears that in course of the proceeding, the minor child was produced before the Conciliators and the order-sheet reveals that she expressed her intention to stay with her father and refused to live with her mother. On the basis of such facts, the petitioner prays that the order for production of the child and the appointment of the mother as guardian during pendency of the proceeding is unjust and illegal. 4. These submissions are strongly repudiated by Dr. Dash, learned counsel appearing for the opposite party-wife. According to her, the mother is the natural guardian of the minor child and the Court below has rightly allowed the interim petition and di¬rected the husband to produce the child. She has also relied upon several judgments. According to Dr. 4. These submissions are strongly repudiated by Dr. Dash, learned counsel appearing for the opposite party-wife. According to her, the mother is the natural guardian of the minor child and the Court below has rightly allowed the interim petition and di¬rected the husband to produce the child. She has also relied upon several judgments. According to Dr. Dash, the child is tortured by the petitioner, who has re-married in the meantime and some cases are filed before the Human Rights Commission. To appreciate such submission, we called upon the petitioner-husband to produce the minor child before us and in consonance with the said direc¬tion, the child was produced before this Court on 8.4.2010 in our Chambers. We did not find any urgent need to handover the child to the opposite party-wife. 5. We have heard the learned counsel for the parties at length. It appears that the relief sought for in the main case is same as that in the interim petition. Though both the parties have argued in extenso relying upon several decisions, but then this Court refrains from delving into the merits of the case or refer to the said argument lest it may pre-judge the issues, which are yet to be decided in course of hearing of C.P. No.529 of 2005 by the learned Judge, Family Court, Cuttack. 6. In view of the aforesaid facts and circumstances, this Court feels that ends of justice and equity will be better served if this writ petition is disposed of directing to maintain status quo as on date with regard to the minor child till disposal of the main case and we direct accordingly. Further, it is directed that the learned Judge, Family Court, Cuttack shall dispose of C.P. No.529 of 2005 as expeditiously as possible preferably within a period of three months from the date of communication of the order. The LCR be sent back forthwith. B.N. MAHAPATRA, J. I agree. Petition disposed of.