Sujit J. Munshi and Another vs Shilpa R. Shinde and Another

Akil Kureshi, J.—This petition is a classical example of how much bitterness and bad blood can be created out of a failed marriage. It is also an example of how much a young innocent child would suffer on account of bitter fights between his/her parents. Even if we dispose of this appeal, we are sure we would not have heard the last word about this battle between the husband and wife.

Litigation has a chequered history. Brief reference to factual background is necessary:

2.1 Appellant No. 1 is husband of respondent. Appellant No. 2 is the father of appellant No. 1.(For the sake of brevity appellant No. 1 shall be here-in-after referred to as "the husband" and respondent shall be referred to as "the wife"). The couple have a lovely 10 year old daughter named Akshada. (She will herein after be referred to as "the daughter.") It is the custody of this child which is at the centre of controversy and which has given rise to series of legal battles between the husband and wife.

2.2 Appellant No. 1 and respondent were married on 15.6.1998 as per Hindu rights. Out of the said wedlock, the couple gave birth to a child on 31.10.1999 is named Akshada. Sometime in the year 2004, the husband and wife developed differences and they started residing separately from August 2004. They eventually decided to opt for divorce by mutual consent. They jointly filed Hindu Marriage Petition No. 348/2006 before the Court of Additional Senior Civil Judge Vadodara. They prayed for a consent decree. Couple agreed to a certain formula to share the custody of the child. They invited the Court to pass a decree on the consent terms presented. The Court passed such a decree on 29.11.2006, dissolved the marriage between them. With respect to minor child following provisions were made:

It is agreed by and between the parties hereto as natural guardian - father and mother respectively of minor Akshada that they have settled and finalized their rights as guardian in respect of minor Akshada in terms of following terms and condition:

(i) The parties hereto have upon mutual and matured discussion specifically keeping in view the paramount interest of minor Akshada and to provide the ideal socio, personal, emotional life to minor Akshada considered the utmost and highest interest of minor Akshada, the parties have arrived at following terms to regulate and govern their respective rights and obligations as guardian of minor Akshada.

(ii) However, in case on account of any compulsive circumstances if the petitioner No. 2 is not in a position to hand over the custody at 8 pm on Sunday or at any other time then the petitioner No. 2 undertakes to give and cause a telecommunication to the petitioner No. 1 and the petitioner No. 1 then shall receive/take minor Akshada in terms of this clause.

(iii) That both the parties shall continue to remain and hold the guardianship rights and obligations in respect of minor Akshada jointly, simultaneously and coextensively for all the times to come. Therefore, both the parties hereto agree that both the parties hereto shall be entitled and responsible to exercise their respective rights and duties coextensively in respect of minor Akshada for all the times. It is therefore, agreed by and between the parties hereto that both the parties shall be liable to discharge their duties and obligations as guardian in respect of minor Akshada.

(iv) It is agreed by and between the parties hereto that the petitioner No. 1 shall bear the expenses and costs for the education of minor Akshada. However, the petitioner No. 2 shall actively support and involve herself for the educational activities of minor Akshada and petitioner No. 2 undertakes to extend all active cooperation and involvement in the course of educational and academic activities of minor Akshada.

(v) The parties hereto agree that with a view to provide love, bond and affinity of both the parents, minor Akshada will remain in the custody of petitioner No. 1 from Monday to Friday or closer of academic session of the school on Friday. That the petitioner No. 2 shall be liable to take the custody of minor Akshada from the closing hours of school every Friday and the petitioner No. 2 shall be entitled and responsible to keep and have custody of minor Akshada from onwards Friday as mentioned above till 8.00 PM Sunday evening. The petitioner No. 2 undertakes to personally come and handover the custody of minor Akshada in person to petitioner No. 1 exactly in accordance with the timetable of custody as agreed between the parties hereto.

(vi) 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 course of time of their custody, they shall provide the most beneficial healthy and positive atmosphere and both the parties hereto agree that they shall actively contribute for the best and positive socio, 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 extent parental and guardianship duties for ideal growth of minor Akshada, both of them shall extent all positive support and shall discharge their duties respectively in the best possible manner and to preserve the highest and paramount interest of minor Akshada in all walks of her life.

(vii) It is agreed by and between the parties hereto that in the course of vacation of the school, both of them shall be entitled to have the custody in equal proposition of the time to be divided from out of the total number of days of vacation/holidays as may be declared in every English Calendar year by the school or institution. It is agreed by and between the parties hereto that each equal proportion for having custody in the course of vacation shall be mutually decided from time to time in the course of years to come.

(viii) It is agreed by and between the parties hereto that though they have served their matrimonial relationship, they shall take utmost care while dealing with the life of minor Akshada that she does not suffer either socially, emotionally, physically on account of matrimonial separation between the parties hereto and therefore both the parties agree that they shall be careful and cautious and shall extend all active support and cooperation to provide the positive socio, personal and physiological atmosphere to minor Akshada and thereby shall discharge their duties as parents guardian without having any effect of matrimonial separation of their role as parents of minor Akshada.

(ix) It is agreed by and between the parties hereto that the present formula as stipulated vide term of this petition as detailed above keeping in view at the centre the paramount and highest interest of minor Akshada and therefore, both the parties have agreed that both shall follow and adhere to the above referred term as mutually accepted by both the parties hereto as regard their role and discharging duties as guardian, i.e. father and mother respectively as minor Akshada for all the times to come.

(x) It is agreed to by and between the parties hereto that in case of the petitioner No. 1 leaving India or suffering death, the petitioner No. 2 shall be responsible to have, take care of the custody of the minor Akshada and discharging the duties and obligations as the sole natural guardian of minor Akshada in case of the aforesaid eventually. It is further agreed that the aforesaid obligation shall be applicable to the petitioner No. 1 on mutatis mutandis basis.

2.3 It is the case of the wife that her husband did not fulfill the said terms of the agreement and is bent on not permitting her to spend any time whatsoever with the daughter. It is her case that to achieve this purpose the appellants against the terms of decree, shifted the daughter from a school at Vadodara to a Boarding School in Bharuch namely, Sarvanaman School, Bharuch.

2.4 Wife therefore, filed a Civil Misc. Application No. 1001/2008 before the learned District Judge, Vadodara u/s 25 of the Guardians and Wards Act praying inter-alia that the daughter having been admitted in a school at Bharuch without her consent and knowledge, she be directed to be admitted in a school at Vadodara so that she can continue to enjoy visitation rights of her daughter as provided by the Court while disposing of the divorce petition.

2.5 This application was opposed by the husband. Detailed affidavits were filed. Learned Judge passed order dated 22.10.2008 below application exh.5 and 11 in the Civil Misc. Application No. 1001/2008 and held that such an application was not maintainable. Learned Judge was of the opinion that the question of custody and visitation rights of the child were already decided by the learned Civil Judge(SD) in the divorce petition. If there is any breach of such an order, wife has to approach the same Court. In the result, Civil Misc. Application came to be dismissed by the said order.

2.6 In the meantime, husband filed Misc. Civil Application No. 228/2008 before the learned Civil Judge(SD), Vadodara praying that the Judgment and decree passed in divorce petition insofar as it pertains to para 5(ii) to (x), may be revoked. In short, his prayer was that the wife be not permitted any access to the daughter.

2.7 Aggrieved by the decision of the District Court dated 22.10.2008 passed in her application under the Guardians and Ward Act, wife filed Special Civil Application No. 1219/2009 before the Learned Single Judge of this Court. While said petition was being heard, fact of husband having moved the Civil Judge for modification of the divorce decree pertaining to custody and visitation rights of the wife came to the notice of the Learned Single Judge. Learned Single Judge decided to exercise suo motu powers under Article 227 of the Constitution of India against the said proceedings and register the same as Special Civil Application No. 2031/2009.

2.8 The learned Judge disposed of both the petitions by a common Judgment dated 14.5.2009. In the said decision, Learned Single Judge formed an opinion that shifting of the daughter from school at Vadodara to Bharuch was an act of the husband only to aim at denying the mother even the visitation rights of the daughter. Learned Single Judge discarded the wish of the daughter on the ground that minor daughter was suffering from ear-poisoning by the father.

2.9 Learned Judge therefore, directed that daughter be admitted in a school at Vadodara. With respect to the proceedings initiated by wife before the District Court, learned Judge found that same were prima facie maintainable and learned Judge therefore, committed error in rejecting the same under Order VII Rule 11 of the Code of Civil Procedure.

2.10 Learned Single Judge gave following directions while disposing of the petitions:

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 u/s 26 of the Hindu Marriage Act are required to be terminated being litigation initiated with malafide 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.

Special Civil Application No. 1219 of 2009 filed by the petitioner is allowed. Order dated 22.10.2008 passed below Exh.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.

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.

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.

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.

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.

The proceedings before the lower court, i.e. Misc. Civil Application No. 228 of 2008 preferred u/s 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 exh.5 is allowed in the above terms.

Suo motu proceedings, being Special Civil Application No. 2031 of 2009 are terminated and culminated accordingly.

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 u/s 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.

2.11 This order has been challenged by the husband in the present Letters Patent Appeal.

Though initially Letters Patent Appeal was filed only against Learned Single Judge taking suo motu action in MCA No. 228/2008 filed by the husband, subsequently appellants were permitted to amend the appeal and challenge entire Judgment and order dated 14.5.2009 passed in Special Civil Applications No. 2031/2009 and 1219/2009.

Ordinarily, we would have insisted on two different Letters Patent Appeals being filed to challenge the order passed by the Learned Single Judge which is though a common judgment, disposes of two Special Civil Applications. However, when the appellants have been previously permitted to amend the appeal challenging the decisions in both Special Civil Applications by a common appeal, and when we find that filing of separate appeal would only further inconvenience the respondent wife who has been appearing before us in person, we do not insist on such technicalities.

Appearing for the appellant, learned advocate Shri Dipen C. Shah submitted that the learned Judge committed an error in interfering with the order passed by the District Judge dismissing the Civil Misc. Application No. 1001/2008 filed by the wife. He contended that such an application was not maintainable and therefore, rightly dismissed by the learned District Judge. He further contended that learned Single Judge committed a grave error in exercising suo motu powers in withdrawing before himself Civil Misc. Application No. 228/2008 filed by the husband and dismissing the same without any trial. He submitted that application involved highly disputed questions of facts. Parties ought to have been permitted to lead proper evidence before deciding the application.

He further contended that the daughter is matured enough to express her wish. Learned Single Judge ought not to have ignored her wish not to go with the mother.

On the other hand, respondent wife appeared in person and contended that application before the District Court filed by her was maintainable. Same was wrongly terminated. Learned Single Judge therefore, committed no error in passing the impugned judgement. She contended that wish of the minor daughter cannot be the sole basis for deciding the present proceedings. Girl is still very young. Her wish is not free from influence. Respondent further contended that she may be allowed sufficient time with her daughter to win over her affection. She relied on a report downloaded from the Internet titled "Parental Alienation Syndrome" which describes the state of a child who has been separated from one of the two parents.

We are acutely conscious of the mental state of a lady who has not only been separated from her husband in extremely unfortunate circumstances but is also not able to spend enough time with her own daughter. We have in present proceedings however, certain constrains and limitations which do not permit us to remedy the feeling of bitterness that respondent is carrying. We feel so because in our opinion in a case where question of custody of minor child is concerned, it is the welfare of the minor alone which should be of paramount consideration. No other factor can have overriding effect over the welfare of the minor. So much has been well laid down in a series of decisions of this Court as well as Apex Court. In case of Renuka Das Vs. Maya Ganguly and Another, the Apex Court observed that:

The principles in relation to custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the "welfare of the child" and not rights of the parents under a stature for the time being in force.

In case of Athar Hussain Vs. Syed Siraj Ahmed and Others, the Apex Court observed with approval the observations in case of R.V. Srinath Prasad Vs. Nandamuri Jayakrishna and Others, to the effect that custody orders by their nature can never be final. However, before a change is made, it must be proved to be in the paramount interest of the children. It was further observed that strict parameters governing an interim injunction do not have full play in matters of custody. With respect to the wish of minor, the Supreme Court observed that:

The High Court had relied heavily on the preference made by Athiya Ali who then was 10 to 11 years'' old. In the opinion of the High Court, she was capable of making intelligence preference. It may be true that 11 years is a tender age and her preference cannot be conclusive. The contention of the appellant in this respect is also supported by the decision in Bal Krishna Pandey case. But as we are not dealing with the question of guardianship, but only with the issue of the interim custody, we see no reason why the preference of the elder child shall be overlooked.

Bearing in mind the above principles, we have approached the issues arising before us. Previous benches had explored the possibility of bringing about some reasonable workable formula between the husband and the wife with respect to custody and visitation rights of the child. Sincere efforts were made to see that the mother and the child can spend sometime together so that the child can have the benefit of care and love and affection of both the parents. On 25.6.2009, the Bench heard not only the husband and wife but daughter also, ascertaining the wish of the daughter and eventually passed the following order:

Heard learned Counsel on either side.

Parents of the child appeared before us. We have heard them. We have also heard the child at length and ascertained her wishes. Child has categorically stated that she is very happy with the present set up. Child is now studying in Sarvanaman School at Bharuch. She was studying in 3rd standard and now she has passed 3rd standard and she has been admitted in 4th standard. Child has stated that she is studying in Boarding school and has got very good friends around the school. She also stated that School authorities as well as teachers give proper attention to her and she would very much like to study in the same school in 4th standard.

Mother of the child stated that if she is shifted to a school at Vadodara, she would be able to meet the child quite often. She also stated that school authorities are not permitting her to visit the child. Appropriate directions be issued to that effect.

At this stage, we are primarily concerned with the welfare of the child and her wishes. Going through the record and after hearing the arguments of the learned Counsel on either side and after hearing the parents in person and the child, we are of the view that it is in the best interest of the child that she be not shifted from the present school i.e. Sarvanaman School to some other school since she is very happy with the present set up.

Under such circumstances, order passed by the learned Single Judge to shift her from the present school i.e. Sarvanaman to the School at Vadodara is stayed with direction to Sarvanaman School, Bharuch to admit Akshada in the 4th standard.

If the parties, so advised they may make further application for visiting rights. Same will be considered in accordance with law.

Learned Counsel appearing for the appellant submitted that child has been admitted to the above-mentioned school, therefore, she may be permitted to attend the school. School authorities shall permit her to allow her to attend the classes.

Learned Counsel appearing for the mother submitted that school authorities are not giving permission to visit her child. School authorities will examine the request of the mother and permit her to visit the child without affecting the school discipline.

On 28.8.2009, once again efforts were made to ensure that respondent can meet her daughter at her school in absence of the father. It appears that such efforts did not succeed for some reason or the other.

In Civil Application No. 10919/2009 for directions, Division Bench of this Court on 5.10.2009, had considered the request of the respondent to handover the custody of the child for a few days during the vacation noting that "When the child was interviewed by us on the previous occasion, the child was not willing to go with her mother". The Bench to ascertain the wish of the child appointed learned advocate Ms. Kruti M. Shah as the Court Commissioner to find out whether child wishes to stay with her mother for few days during the Diwali vacation. This was to be done in presence of the mother as well as in her absence. The husband was directed not to remain present at that time.

10.1 Accordingly, learned advocate had visited the school and gave a detailed report dated 8.10.2009. In the report she stated that daughter had refused to talk to her mother. Learned advocate had also tried to ascertain the wish of the child in absence of the mother. The report records the outcome of such efforts in following terms:

On inquiry, she has stated following reasons for her disinclination to go with her mother in Diwali Vacation.

(i) Earlier she used to go to reside her mother''s house on every Saturday-Sunday i.e. during the visitation and custody on weekends but after her mother went to South Africa for three months, she had not gone there.

(ii) She does not want to go to her mother''s house because her mother left for South Africa under a ruse that she had just been to Bombay though she used to calling her on phone and talking to her.

(iii) ''Akshada'' felt that her mother tried to make believe that her father and paternal grandmother were beating her mother.

(iv) When she used to go to reside at her mother''s house in past, her mother used to send her outside of the house to purchase daily provisions by giving her month which she disliked doing.

(v) The mother used to rebuke her in small matters.

(vi) She likes the company of her paternal grandparents.

(vii) Her mother did not ask her about the rank when she obtained in 3rd Standard.

(viii) She does not have affinity with her mother.

I had asked her following question:- Whether she would have continued to go to her mother''s place if she would not have gone to South Africa? She has replied in affirmative by nodding her head. On asking certain questions, she replied that she stays in vacations with her grandparents and her father used to visit her there as he stays separately.

Thereafter, I called the mother and grandmother and ''Ashada'' again together in the room in my presence and when her mother and grandmother showed ''Akshada'' some their photographs with her of her earlier birthday celebrated in Baroda last year, she saw them and smiled and on my inquiry with her answered my questions in affirmative by nodding her head that she used to have fun at her mother''s home when she used to say there in weekends and she used to play with her mother. She smiled on certain facts told by her maternal grandmother regarding her playful, innocent and childlike mischief she used to make at her mother''s place. But she did not talk with them. When she was asked to remember about her maternal uncle''s sons and two pet dogs, she responded positively by expressions but did not speak anything. In their presence, she did not speak anything and she refused to go with them for few days during Diwali vacation.

Even after said report was submitted to the Court in an order dated 8.10.2009, the Bench observed and directed as follows:

Report submitted by the Officer of the Court Ms. Kruti M. Shah is taken on record. We have perused the report.

Mother appearing as party-in-person has filed this Civil Application for custody of her child for the period during the Diwali vacation.

From the report of the Court Commissioner, it appears that child wishes to stay with her paternal grand-father during Diwali vacation who are stationed at Vadodara.

Considering the same, we are inclined to allow the mother to visit the child for few hours during the Diwali vacation at the paternal grandfather''s residence on 16th or 17th and 24th and 30th of October, 2009, at Vadodara.

This order is passed in the presence of paternal grand-father who is also present in the Court, and is ready to make necessary arrangements for the mother to meet the child during the Diwali Vacation, without any disturbance, as specified above.

We direct that when mother of the child visits the paternal grandfather''s residence, father should stay away from the residence, so that mother could spend some time exclusively with the child.

Learned advocate Ms. Kruti Shah submitted that amount to be paid towards her remuneration as Commissioner be deposited with Gujarat High Court Advocates Library.

Registry is accordingly directed to deposit the amount to be paid towards the remuneration of the Commissioner with the Gujarat High Court Advocates Library.

We appreciate the work done by the Commissioner.

Civil Application stands disposed of accordingly.

Two things can be straightaway seen from the above. Firstly, the Court had made strenuous efforts to see that mother can spend some time with the child so that despite child''s reluctance to meet her mother, mother can gradually win over her child''s affection and confidence and over a period of time be able to spend more quality time with the child. Secondly, that despite such strenuous efforts, child flatly refused to have anything to do with the mother.

In the first meeting that the Court had with the child on 25.6.2009, the child was adamant, clear and steadfast in her opinion not to be with the mother. Subsequently also all efforts made by the Court to give some opportunity to the mother to spend some time with the child totally failed on account of child''s desire to have nothing to do with the mother.

As already noted in addition to interviewing the child on 25.6.2009 and ascertaining her wish, the Bench once again considered the request of the mother to permit her to spend a few days during Diwali vacation. However, before doing so, it was necessary to ascertain whether the child was ready for such an arrangement. For such purpose, Court Commissioner was appointed. Learned advocate appointed as Commissioner visited the school where the child is studying, accompanied by the mother and grand mother. In presence and in absence of her mother, Akshada refused to go with her.

Under the circumstances, we do not find that it would be advisable to force the child to go with the mother. Learned Single Judge had found the child to be bright and intelligent. The Bench also in its order dated 25.6.2009 had recorded that she was happy in the school, that she has friends in the Boarding school and that she is getting sufficient attention from the teachers. Child is not an infant. She is aged about 10 years. She in fact comes across as an intelligent and a bright girl. It is therefore, not possible to brush aside her wish and to force her to go to the mother against her strong opposition. For the purpose of present proceedings, we refuse to go into the reason why child is so much against her mother. We are neither accepting nor rejecting the contention of the respondent that the husband is poisoning the ears of the child nor do we accept or reject the say of the husband that mother suddenly disappearing and moving to Tanzania without a word to the child has antagonized the child to a point of no return. Suffice it to say, we do not see any reason to uproot the child from her Boarding school at Bharuch where she appears to be well settled and happy.

Coming to the question of decision of Learned Single Judge, we are of the view that learned Judge was not justified in recalling the proceedings of Misc. Civil Application No. 228/2008 filed by the husband and terminating the same without a proper trial. If the husband desired that the terms of the decree pertaining to the custody of the minor child required modification on account of changed circumstances, such proceedings were required to be disposed of after permitting both the sides to place appropriate material on record. Learned Single Judge also found that such proceedings were not incompetent. Recalling such proceedings by the High Court and terminating the same without trial was therefore, not justified.

With respect to the application of wife being Civil Misc. Application No. 1001/2008 though we find that same may be competent before the District Court, in facts of the case, proceedings have been rendered infructuous in view of our conclusion that at-least at present it is not advisable to shift the child from the Boarding school at Bharuch to a school at Baroda. One may recall that sole prayer made in the said application by the wife is to re-transfer the daughter from school at Bharuch to any school at Vadodara so that she can continue to enjoy her visitation rights flowing from the divorce decree. This prayer is dealt with at length in this order. We find that such prayer is not feasible in facts and circumstances of the case. Therefore, without going into the jurisdiction of the learned Judge to entertain such an application, we hold that the application has become infructuous. This is not to suggest that we intend to deny the wife her visitation rights flowing from the divorce decree.

Before concluding we may note that in an order dated 18.3.2009 passed in Special Civil Application No. 1219/2009, Learned Single Judge finding the conduct of the husband objectionable, had given directions to initiate contempt proceedings in following terms:

13.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.

It is clarified that we have not modified or diluted the said directions in any manner in this order and contempt proceedings would be judged independently of this order.

In the result, appeal is disposed of with following directions:

Judgment and order dated 14.5.2009 passed in Special Civil Applications No. 2031/2009 and 1219/2009, passed by Learned Single Judge is set aside.

Misc. Civil Application No. 228/2008 filed by husband is remanded to the learned Civil Judge, Vadodara, for further consideration and disposal in accordance with law, unmindful of observations made here-in-above.

Civil Misc. Application No. 1001/2008 filed by the wife is rendered infructuous. Same stands disposed of accordingly.

In view of the above, Civil Application does not survive. Same stands disposed of accordingly.