ORDER : Bharat P. Deshpande, J. The present application was filed by the applicant/father for grant of full custody of the child with explicit right to move the child out of the country. 2. Heard Mr. Chandan Pawaskar, the applicant in person and Ms. A. Agni learned counsel for the respondent at length. 3. Mr. Chandan would submit that he filed a Matrimonial Petition No.8/2018 along with an application for custody of the child before Mapusa Court wherein issues were framed, arguments were concluded by filing written submissions and even evidence was led. Suddenly said Court dismissed Matrimonial Petition No.8/2018 along with custody application as infructuous on the ground that in a petition filed by the respondent before Quepem Court, divorce was granted and thus present proceedings before Mapusa Court became infructuous. Said order was passed by Mapusa Court on 29.2.2024 which he has challenged under First Appeal no.934/2024/F. 4. Mr. Chandan would submit that even though Matrimonial Petition was pending before Mapusa Court wherein respondent/wife was contesting the proceedings, she clandestinely filed a petition before Quepem Court for grant of divorce and then obtained an exparte decree and then applied before Mapusa Court for disposal of the said case. He submits that by way of another First Appeal No.935/2024 he has challenged the exparte decree passed by Quepem Court. 5. Mr. Chandan would submit that due to the matrimonial discord respondent/wife was not taking care of the child who is now five years old and she brought the said child from Pune to Goa and thereafter now the child is admitted in a school at Porvorim. He submits that by taking advantage of exparte decree, respondent now remarried and therefore, she is not entitled to have the custody of the child. He submits that Matrimonial Petition no.8/2018 was filed by him with the allegations of ill treatment, negligence on the part of the respondent to look after the house and the child and also adultery. 6. He would further submit that the child was not allowed to attend the school on many occasions and even when he was ill, was taken to some places only because the respondent/wife was supposed to attend family functions. He would submit that the child would be more comfortable with his father who need to have custody for education at Pune. Mr. He would submit that the child would be more comfortable with his father who need to have custody for education at Pune. Mr. Chandan would submit that he is working from home and could devote more time towards the child and his welfare. He further submits that the respondent after remarriage cannot be allowed to take the child to reside in her new house along with her husband as it would be detrimental to the child and would also destroy the relationship between the father and the child. He therefore submits that full custody of the child be given to him. 7. Ms. Agni learned counsel for the respondent firstly raised preliminary objection to the maintainability of the first appeal as well as present misc. Civil application. She submits that the applicant cannot challenge orders passed by two different courts in one appeal. She further submitted that divorce is already granted by Quepem Court and thereafter marriage registration has been cancelled. 8. Ms Agni, would submit that the child was brought to Goa from Pune after completing all formalities including obtaining transfer certificate from the school and that it was to the knowledge of the applicant. She submits that the applicant suddenly removed the child from the school at Porvorim without any intimation and, therefore petition was filed before this Court for Habeas corpus. This Court after conducting an interview with the child and both the parents, disposed of said petition with certain directions and even granting interim custody to the mother with visitation rights to the father. She would submit that the Division Bench of this Court while disposing of said petition clearly observed that such interim custody order shall remain in force till the time such order is modified/varied by the competent Court where application for custody is pending or by the First Appellate Court since appeals are filed by father. 9. Ms Agni would submit that the application for interim custody was rejected. However, such order was never challenged. She therefore would submit that now the respondent/wife has already filed an application for custody of the child wherein notice is issued to the applicant/father and therefore this court should not interfere with such orders and that too in an appeal. 10. Some of the admitted facts needs to be highlighted. A petition was filed by the applicant before Mapusa Court vide Matrimonial Petition No.8/2018 for divorce. 10. Some of the admitted facts needs to be highlighted. A petition was filed by the applicant before Mapusa Court vide Matrimonial Petition No.8/2018 for divorce. In that petition, the applicant has filed an application for custody of the child. In that petition, issues were framed including issues regarding cruelty as well as adultery and even the applicant's evidence was recorded. Similarly in connection with application for custody of the child, written submissions were filed by the respective parties. It is also a fact that the respondent/wife while contesting Matrimonial petition no.8/2018 before Mapusa Court, filed another Matrimonial Petition for divorce no.42/2022/A in Quepem Court. It is matter on record that in the said proceeding before Quepem Court, the applicant proceeded exparte and finally Quepem Court granted decree of divorce in favour of the respondent. Such decision was passed on 6.5.2023 by a Civil Judge, Senior Division, Quepem in Matrimonial Petition No.42/2022/A. Thereafter respondent by filling an application before Mapusa Court in Matrimonial Petition No.8/2018, sought dismissal of such proceeding as infructuous. Though the applicant contested such application, learned Civil Judge, Senior Division Mapusa vide its order dated 29.2.2024 observed that since decree of divorce is already granted by Quepem Court, proceedings before Mapusa Court for grant of divorce as well as application for custody became infructuous. 11. The applicant challenged such order passed by Mapusa Court by filing First Appeal no.934/2024/F. Similarly, the applicant preferred First Appeal No.935/2024/F thereby challenging the judgment dated 6.5.2023 passed by the learned Civil Judge Senior Division Quepem in Matrimonial Petition No. 42/2022/A. 12. Preliminary objections which have been raised on behalf of the respondent are therefore untenable since two separate appeals are filed challenging two different orders. 13. However, disturbing feature in the present proceeding is the order passed by the learned Civil Judge, Senior Division, Mapusa by which application filed for custody of the child is also disposed of along with Matrimonial Petition No.8/2018. 14. As far as disposal of the Matrimonial Petition No. 8/2018 is concerned, that could be taken care of while disposing of First Appeal No. 934/2024/F. At this stage, such an aspect should not detain the Court in taking up the application for custody since such aspect of disposing of the custody application as infructuous, could be taken under supervisory powers of this Court under Article 227 of the Constitution of India. 15. 15. First and foremost aspect in this matter is that the learned trial Court ought to have separated matters regarding divorce from the custody application. There is no connection with regard to grant of divorce or considering the petition for divorce with that of custody of the child. Such aspect of custody of a child ought to have been taken up separately and independently. 16. Even if learned trial Court comes to the conclusion that petition for divorce need not be taken up since another Court has already granted divorce could have been considered by separating application for custody from the said matter. Learned trial Court ought to have directed registration of the custody application separately and taken it up independently further though petition for divorce was considered as infructuous. 17. It has been reported by the applicant and not controverted by the respondent that custody of child was considered, replies were filed, written arguments were filed and thereafter it was probably kept for decision. At that stage, it was expected from the concerned Court to decide the custody application even though it came to the conclusion that the Matrimonial Petition became infructuous. 18. By not deciding such an application for custody and disposing of as infructuous, was totally unwarranted and unnecessary. By mixing both these different issues i.e. divorce and the custody of the child, the trial Court completely lost sight that custody of a child could be a separate issue even if the divorce was granted. Once such application was pending, it should not have been decided and or disposed of as infructuous, along with Matrimonial Petition No. 8/2018. 19. Learned trial Court by doing this, denied the opportunity to the applicant and failed to take into consideration the best interest of the child. It is no doubt true that the applicant preferred separate application for grant of custody of child along with First Appeal; however propriety demands that when the application was filed and even written arguments were submitted by both the parties, such application could have been separated from the Matrimonial Petition and disposed of on merits. Learned trial Court was having advantage of the evidence, written submissions and other material filed by the respective parties for the purpose of deciding such application. However, by disposing of such application as infructuous, the applicant was unnecessarily dragged to further litigation by filing a present application. 20. Learned trial Court was having advantage of the evidence, written submissions and other material filed by the respective parties for the purpose of deciding such application. However, by disposing of such application as infructuous, the applicant was unnecessarily dragged to further litigation by filing a present application. 20. Petition was filed before this Court by the respondent/mother for habeas corpus as the child was removed by the applicant from the school without the consent of the mother. Such petition was decided by the Division Bench of this Court by order dated 7.3.2024 in Criminal Writ Petition No. 227/2024/F. Observations of the Division Bench and more specifically directions with regards to interim custody of the child in paragraph 4 are as under:- "(a) In terms of the present usual routine, Athang will return to Tanvi's home at Arpora and continue schooling at Chubby Cheeks Spring Valley High School at Porvorim, Goa. This is more so because Athang's exams could possibly commence by the end of March and conclude by the first or second week of April. (b) Every Friday, at the end of school hours, Chandan picks up Athang from the school so that Athang can stay with him at the Mapusa apartment on Friday, Saturday, and Sunday until 7:00 p.m. when Tanvi picks him up from Mapusa so that he can continue with his routine at school from the following Monday. (c) When Athang is at Arpora with Tanvi, each evening between 7.00 p.m. and 8.00 p.m., he will interact with Chandan via video call. Tanvi will have to make all arrangements and facilitate this. Similarly, on the days when Athang is with Chandan, Athang will similarly interact with Tanvi between 7.00 p.m. and 8.00 p.m. Chandan will have to ensure and make all arrangements for such interaction. (d) Tanvi and Chandan, at the court's suggestion, have agreed to meet with a Counselor so that the Counselor can assist them in arriving at a workable arrangement regarding future interactions between them and Athang. (e) Until the next date, we would be happy if Tanvi and Chandan had at least two such interactions with the Counsellor. We think that such sessions will help them come up with some mutually agreed action plan by focusing on Athang's best interests. (e) Until the next date, we would be happy if Tanvi and Chandan had at least two such interactions with the Counsellor. We think that such sessions will help them come up with some mutually agreed action plan by focusing on Athang's best interests. (f) Tanvi and Chandan have also agreed in the Court that Athang will spend the first 30 days of Athang's summer vacation with Chandan either at Mapusa or Pune, as per Chandan and Athang's choice. During that period, Athang will also interact with Tanvi on video calls each day. Needless to add, during the period Athang is with Tanvi, Athang will similarly interact with Chandan through video calls." 21. Thus it is clear that interim custody of the child was given to the mother with the condition of visitation rights to the father. The Division Bench observed that such interim custody shall continue till it is modified/varied or otherwise by the Civil Court in a custody application or before the First Appellate Court where appeals are filed. 22. Thus it was incumbent upon the concerned Civil Court to decide the application for custody of the child independently and separately without considering the fact that Matrimonial Petition became infructuous as alleged. 23. Best course which could be adopted is to restore the custody application filed before the Civil Court at Mapusa with a direction to register it independently and separately and to decide it on its own merits after hearing both the sides. Till that time, interim custody arrangement as directed by the Division Bench needs to be continued. The above course is necessarily required to be adopted since by disposing of such an application as infructuous, parties were not given proper opportunity to address the Court on merits. Similarly parties are going to lose an opportunity to challenge such order in an appeal. Since entire material is already produced before said Court at Mapusa, it would be more advantageous for the said Court to decide such application after giving opportunity to the concerned parties and without influencing itself about the fact of disposal of Matrimonial Petition No. 8/2018. 24. It is an admitted fact that the child is at present schooling at Porvorim whereas the applicant is admittedly staying in Pune. For the purpose of deciding the application for custody, Civil Court will have to consider all the aspects which are already produced before it. 24. It is an admitted fact that the child is at present schooling at Porvorim whereas the applicant is admittedly staying in Pune. For the purpose of deciding the application for custody, Civil Court will have to consider all the aspects which are already produced before it. Thus by taking recourse of Article 227 of the Constitution of India and supervisory power of this Court as well as looking to the best interest of the child, it is necessary to quashed and set aside the order passed on the application for custody of the child which was filed by the applicant before Mapusa Court, to restore such application, to register it separately and then to decide it on its own merits after giving opportunity to both sides, in a time bound manner. 25. Accordingly, the impugned order dated 29.5.2024 passed on an application for custody of child passed by the Mapusa Court is hereby quashed and set aside. Said application is restored to the concerned Court with a direction to register it separately and then take up such application independently by giving opportunity to both sides and thereafter decide it, within a period of two months from the date of receipt of the copy of this order. Both the parties shall appear before Mapusa Court on 2.7.2024 at 10.00 a.m. 26. Misc. Civil Application No.1078/2024/F is accordingly, disposed of in the above terms.