Jasmine vs Kunji Mon P.K.V.

R. Basant, J.—The parties are divorced spouses. A male child aged about six years now was born in the wedlock and that child is in the custody of the petitioner/mother of the child. There were disputes between spouses. A petition for custody of the minor child was pending before the Family Court. During the pendency of that petition, all outstanding disputes were settled vide Ext.P1 agreement. Accepting that agreement between the parties, the matter was closed and all outstanding disputes were settled.

The petitioner/mother of the child has subsequently got remarried. The respondent has also got remarried, it is submitted. In the light of the remarriage of the petitioner, the respondent filed several applications including I.A. No. 1267/2010 to modify the consent order. The petitioner has entered appearance in that I.A. and the matter is pending before the Family Court. That petition has not been taken up for consideration and disposal so far.

While so, the respondent filed another application, I.A. No. 1822/2010. A copy of the petition and affidavit filed in support of the same is produced as Ext.P6. Ext.P8 is the notice issued by the Family court. In the said I.A. No. 1822/2010, the petitioner was directed in that notice to produce the child before the Family Court on 24/7/2010. On 24/7/2010, the child was not produced on the plea that the child was ill. The matter now stands posted to this date before the Family court. The petitioner had already filed Ext.P7 counter statement to I.A. No. 1822/2010. In I.A. No. 1822/2010, the crux of the grievance of the respondent is that the stipulation in the consent order about handing over of the child on all Sundays is not being obeyed by the petitioner.

The petitioner, at this juncture, has come to this Court challenging Ext.P8 order. We find absolutely no merit in the challenge presently raised. It is for the petitioner to advance his contention before the Family Court in I.A. No.1822/2010 and seek appropriate orders. We find merit in the contention of the learned Counsel for the petitioner that before I.A. No. 1267/2010 is disposed of, it may not be advantageous to pass final orders in I.A. No. 1822/2010 modifying the stipulations of the consent decree. But it is for the petitioner to appear before the family court and make all relevant submissions. The Family Court has to dispose of I.A. No. 1267/2010 as expeditiously as possible. The Family Court must also ensure that till I.A. No. 1267/2010 is disposed of on merits, the consent order passed in O.P. No. 1074/2009 is complied with strictly.

According to the petitioner, as per the consent order passed, the respondent has to come to her residence and take the child. Production of the child on every Sunday before the Family Court situated at a distance of about 30 kilometres from the residence of the petitioner would be inconvenient and would amount to unnecessary hardship to the child. The learned Counsel for the petitioner suggests that some neutral local venue can be suggested where the child can be handed over every Sunday in accordance with the consent order passed. But all these are contentions which ought to be urged before the Family court. We are not persuaded to agree that it is necessary for us to invoke the extra ordinary constitutional jurisdiction under Article 227 of the Constitution of India to interfere with Ext.P8 notice issued by the Family Court and the direction therein that the child must be produced before the Family Court. The petitioner must produce the child before the Family Court and seek appropriate directions from the Family Court in I.A. No. 1822/2010. We find no reason to admit this writ petition and order notice to the respondent. Inasmuch as we are not admitting this writ petition, we are satisfied that notice need not be ordered to the caveator/respondent also.

This writ petition is accordingly dismissed with the above observations.