JUDGMENT 1. The petitioner is before this Court calling in question order dtd. 4/11/2019 passed on I.A.No.VI in G & WC No.4 of 2019 by the I Additional Principal Judge, Family Court, D.K., Mangalore insofar as it makes payment of maintenance a condition precedent to the petitioner's visitation/interim custody of children. 2. Heard Sri Arun Govindraj, learned counsel appearing for the petitioner and Sri M.N. Nehru, learned counsel appearing for the respondent. 3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:- The petitioner is the husband and respondent is his wife. Marriage between the two takes place on 24/11/2003 at Kollur. From and out of the wedlock the couple have two children - a son born on 11/6/2008 and a daughter born on 3/6/2009. The marriage between the two began to flounder which led to execution of a settlement agreement styled as a separation agreement between the two and their respective fathers laying certain conditions with regard to separation, custody, visitation and maintenance. 4. The respondent on the allegation that the husband has not paid maintenance in terms of separation agreement instituted proceedings before the concerned Court in M.C.No.56 of 2019 seeking dissolution of marriage between the parties. After registration of the case for divorce the husband initiates proceedings under the Guardians and Wards Act, 1890 ('the Act' for short) in G & WC No.4 of 2019 seeking him to be appointed as the sole guardian of minor children and further prayed permanent custody of his minor children. In the said proceedings, the petitioner files an application under Sec. 12 of the Act praying that an order be passed permitting him to exercise his custody and visitation rights over minor children. 5. The concerned Court, in terms of its order dated 04-11- 2019, noticing the fact that the petitioner had not paid maintenance to the respondent from November 2018 as agreed in the separation agreement, passed an order that visitation or custody of minor children as claimed by the petitioner would be subject to the condition that he would pay maintenance. It is against this order the petitioner has preferred the subject petition. The said order was passed on 4/11/2019 and the writ petition comes to be filed on 14/11/2022, 3 years and 20 days after passing of the impugned order. 6. It is against this order the petitioner has preferred the subject petition. The said order was passed on 4/11/2019 and the writ petition comes to be filed on 14/11/2022, 3 years and 20 days after passing of the impugned order. 6. The learned counsel appearing for the petitioner submits that the concerned Court could not have made visitation and custody subject to payment of maintenance as it is a separate cause of action altogether to be agitated by the wife. The learned counsel would submit that the Court ought to have restricted its finding only to the issue of visitation and custody. He would contend that the wife has breached separation agreement on several occasions and, therefore, the petitioner was constrained to deny maintenance. Therefore, fault lies on both sides. He would submit that the petitioner is ready and willing to pay maintenance, as also education expenses of the children. It is his submission that the wife has deliberately shifted the children from the school they were studying to an expensive residential school at Ooty only to harass the petitioner. Therefore, the petitioner is not in a position to arrange that much of money for the education of the children and it was also not agreed between the parties that the children would study in a residential school at Ooty. 7. On the other hand, the learned counsel representing the respondent/wife would refute the submissions to contend that the petitioner after drawal of separation agreement disappeared for six months and did not pay any maintenance. Therefore, the wife was constrained to file a case seeking dissolution of marriage before the concerned Court. Immediately thereafter, as a counter-blast, the petitioner files a petition before the concerned Court seeking custody and right of visitation. The wife would submit that she is always willing to comply with the right of visitation except the fact that the petitioner whenever meets children or wanting to meet children, creates a ruckus and therefore, he has not provided conducive atmosphere for the children to be with him and seeks the order impugned be sustained. 8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 9. The afore-narrated facts are not in dispute. The petitioner and the respondent getting married and having two children from the wedlock is a matter of record. 8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 9. The afore-narrated facts are not in dispute. The petitioner and the respondent getting married and having two children from the wedlock is a matter of record. The marriage between the two began to flounder and resulted in a separation agreement. The separation agreement had certain clauses which the parties were supposed to be adhering to. The separation agreement insofar as it is germane reads as follows: ".... .... .... NOW THEREFORE THIS MEMORANDUM OF SEPERATION AGREEMENT WITNESSETH AS FOLLOWS: 1. The Second Party and First Party will reside separately for three years and if, even after this period of separation, they fail to resolve their differences, the First and Second Party will take necessary steps to apply for divorce under the Hindu Marriage Act, 1955. 2. The Children shall stay with the Second Party for three years from the date of this agreement, after which the custody of the children shall be legally determined. 3. The second party, along with the children, shall reside at #701, A Block, Maurishka Park Apartment, Kodialbail, Mangalore - 575003 for the next three years. If for any reason, they have to move out of the said premises, the First and Third Party shall find a similar sized apartment as a decent neighbourhood in Mangalore for them to reside in. 4. The First Party and his immediate family shall have the right to visit the Children twice a week and to take them on weekend trips. They shall also have the right to share the custody of the Children equally with the Second Party during school vacations and other holidays. Visitation rights of the First Party and his immediate family can be modified from time to time as per the convenience and wishes of all the Parties. 5. This clause will confirmed after further legal advice. 6. The First and the Third parties have agreed to bear the following expenses jointly and severally: 6.1 The rent towards #701, A Block, Maurishka Park Apartment, Kodialbail Mangalore - 575 003, where the Second party and the Children will be living during the tenure of the Agreement or any other alternative residence determined in accordance with Clause 3. 6. The First and the Third parties have agreed to bear the following expenses jointly and severally: 6.1 The rent towards #701, A Block, Maurishka Park Apartment, Kodialbail Mangalore - 575 003, where the Second party and the Children will be living during the tenure of the Agreement or any other alternative residence determined in accordance with Clause 3. 6.2 The School fees, transportation charges expenses towards books, uniform and any other expenses involved in the education of the children at Manipal School, Attavar or any other school as may be determined jointly by the First and Second Parties, in the interest of the children's welfare as well as the extracurricular activities for the children outside of school. 6.3 An amount of INR 25, 000/- per month is to be credited to the Second Party's Andhra Bank Account, Kanhangad Branch, (Or any other account of the Second Party, as specified by her) on or before the 5th of the relevant month for the next three years, for the maintenance of the Children. The amount for the month of June 2017 is to be paid on the date of entering into this Separation Agreement. 6.4 Expenses involved in renewal/upgradation of the Children's British passports and PIO Cards. 6.5 All major medical expenses of the Children, including but not limited to expenses involved in Miss. Ambika Devi Krishnan's cardiac care (coarctation of the aorta). 7. The terms of this Separation Agreement can only be amended in writing, with consent of the First and Second Parties." (Emphasis supplied) The agreement was that both the husband and wife will reside separately for three years and if they fail to resolve their differences during that time, necessary steps would be taken to seek dissolution of marriage. For three years the children would stay with the wife from date of the agreement, after which the custody of the children shall be legally determined. Place of stay of children was also indicated for the next three years. The father had the right to visit children twice in a week and take them on a weekend trips. Certain expenses were agreed to be borne by the father. Place of stay of children was also indicated for the next three years. The father had the right to visit children twice in a week and take them on a weekend trips. Certain expenses were agreed to be borne by the father. The school fee, transportation charges, expenses towards books, uniform and other expenses, involved in the education of children, at Manipal School Attavar or any other school as may be determined jointly by the husband and wife, in the interest and welfare of the children as well as extracurricular activities for the children outside the school would be borne by the husband or father of the husband - the grandfather. An amount of Rs.25, 000.00 per month was to be credited to the wife's account on or before 5th day of every month for the next three years. The expenses involved in renewal/upgradation of the British passports of the children and PIO cards were to be borne by the husband. 10. The agreement was drawn on 13/6/2017. On 15/11/2018 the husband causes legal notice upon the wife alleging that she has violated separation agreement as she has shifted residence without informing the husband contrary to the agreement and sought visitation of children and custody to himself. This was replied to by the wife through her counsel denying the allegations and explaining the circumstances under which the residence had to be shifted and the amount of maintenance that was being paid in terms of the agreement at Rs.25, 000.00 was nowhere sufficient to look after food, medical expenses, clothing of the two children and pay all other incidental expenses. Several other allegations and counter allegations galore between the parties. This leads the wife to file a case under Sec. 13(1)(ib) of the Hindu Marriage Act, 1955 seeking dissolution of marriage before the concerned Court. . The petitioner files his objections to the claim of the wife. Proceedings were pending before the Family Court in M.C.No.56 of 2019. At that point in time, the husband files the petition before the Family Court invoking the provisions of the Act in G & WC 4 of 2019. Here again allegations and counter allegations galore. The concerned Court by its order dtd. 4/11/2019 allows visitation to the husband subject to the condition that the husband pays maintenance. At that point in time, the husband files the petition before the Family Court invoking the provisions of the Act in G & WC 4 of 2019. Here again allegations and counter allegations galore. The concerned Court by its order dtd. 4/11/2019 allows visitation to the husband subject to the condition that the husband pays maintenance. The order reads as follows: "G&WC No.4-2019 ORDER The I.A. No. VI filed by the petitioner under Sec. 12 of Guardians and Wards Act is partly allowed, subject to make payment of maintenance amount from November 2018 to his two minor children as he agreed in separation agreement dtd. 13/6/2017. Making payment of maintenance amount regularly is conditions precedent: If the petitioner makes payment of maintenance amount as agreed, then the petitioner is entitled to exercise his custody and visitation rights of his two minor children Krishnan Nambiar and Ambika Devi Krishnan during April or May every month, commencing from 1st of the month till the 30th of the said month every year and also during the Dasara long holidays and Christmas long holidays in October and December every year and petitioner also permitted to exercise his visitation rights on every 2nd and 4th Saturday and Sunday of every month between 10.00 a.m., and 6.00 p.m., and drop the children back to the house of the respondent in the evening till the disposal of the above case. (Dictated to the stenographer, she typed directly on system, then corrected and pronounced by me in open court this, 04th day of November, 2019)." (Emphasis added) Though the order is passed on 4/11/2019, the present petition is preferred on 14/11/2022 calling the said order in question, contending that the petitioner had been paying educational expenses of the children upto January 2022 and the wife unilaterally withdraws the children from the school in Mangalore and admits them to Blue Mountain School at Ooty. The petitioner sought to correspond with the school seeking details of fee so that he could pay educational expenses of minor children. In turn, the school informed him that the respondent/wife had instructed it not to collect any fee from the petitioner. Therefore, the petitioner being aggrieved by the impugned order has knocked at the doors of this court after 3 years and 20 days of passing of the said order. In turn, the school informed him that the respondent/wife had instructed it not to collect any fee from the petitioner. Therefore, the petitioner being aggrieved by the impugned order has knocked at the doors of this court after 3 years and 20 days of passing of the said order. Several proceedings are narrated in the petition which were not before the concerned Court when the order was passed, as they are all subsequent events to what has happened from the date of passing of the order till today. Therefore, it is for the petitioner to bring everything to the notice of the concerned Court where the petitioner has lost custody or visitation of the children. 11. This Court, by way of interim order, had directed the wife to permit visitation of children at the school. It was indicated that examinations were going on for the children and visitation would be accommodated at a later stage. Though this was in violation of the order passed by this court, in the best interest of children no further orders were passed. Heated exchange of mails between the husband and wife are all produced before this Court. This Court directed payment of Rs.5, 00, 000.00 to the wife, as the petitioner had defaulted in payment of maintenance since November, 2018 and the same has been complied with. Therefore, it is for the concerned Court now to take note of the factors that have happened between 4/11/2019 to this day and pass appropriate orders in accordance with law. 12. The finding in the order making visitation right a condition precedent to payment of maintenance would not survive at this juncture, as the petitioner has paid close to Rs.5, 00, 000.00 to the wife, I deem it appropriate to set aside the impugned order and permit the husband to file a fresh application, if he so desires, before the concerned Court seeking custody/visitation. If such an application is filed, the concerned Court shall after hearing the parties, pass appropriate orders in accordance with law. Before hearing the application or plea of the petitioner, the concerned Court shall consider whether the petitioner has paid maintenance ordered in full as on the date of consideration of the application. 13. For the aforesaid reasons, I pass the following: ORDER (i) Writ Petition is allowed in part. (ii) The order dtd. Before hearing the application or plea of the petitioner, the concerned Court shall consider whether the petitioner has paid maintenance ordered in full as on the date of consideration of the application. 13. For the aforesaid reasons, I pass the following: ORDER (i) Writ Petition is allowed in part. (ii) The order dtd. 4/11/2019 passed on I.A.No.VI by the I Additional Principal Judge, Family Court, D.K., Mangaluru in G and W.C. No.4 of 2019 is quashed. (iii) Since 3 years have passed by, the petitioner is at liberty to file a fresh application, if he so desires, before the concerned Court seeking visitation/interim custody of children. (iv) In the event an application is filed, the concerned Court shall hear the parties and pass appropriate orders in accordance with law. (v) Before the application so filed by the petitioner is taken up for consideration, the petitioner shall clear dues of maintenance if any, apart from what is paid during the pendency of the present proceedings. Ordered accordingly.