SHILPA R SHINDE Vs. SUJIT J MUNSHI

JUDGEMENT

(1.) INVOKING jurisdiction of this Court under Article 227 of the Constitution, shilpa Shinde, petitioner of Special Civil application No. 1219 of 2009 and divorcee wife of respondent Sujit J. Munshi and also mother of minor Akshada, has prayed for issuance of appropriate writ, direction or order by quashing and setting aside the order dated 22. 10. 2008 passed below applications exh. S and application exh. 11 in misc. Civil Application No 1001 of 2008. It is further prayed that this Court may direct the respondent to hand over custody of minor Akshada to the petitioner for fixed time or for a period which this Court may deem fit. It is also simultaneously prayed that pending the disposal of the petition, interim orders also may be passed in terms of Para-7[a] of the petition. It is also prayed by the petitioner that pending the admission, hearing and final disposal of the petition, this Court may grant custody of minor Akshada on weekends i. e. , from friday evening after school hours till sunday night at 8. 00 hrs, more particularly, in the background of the terms of decree of divorce drawn on mutual consent whereby the parties had agreed and arranged in that term.

(2.) THE petitioner approached the district Court with an application under sec. 25 of Guardian and Wards Act and prayed to pass interim orders as to custody of minor Akshada as contemplated under sec. 12 of the said Act. Application preferred under Sec. 12 is the application exh. 5 decided by the learned 5th Additional district Judge, Vadodara along with application exh. 11. Learned Judge rejected the prayer made by the petitioner, mother of minor Akshada. After service of notice of the petition as well as application preferred under Sec. 12 of the Guardian and Wards Act, i. e application exh. 5, the respondent, father of minor daughter Akshada filed an application exh. 11 under Order 7 Rule 11 read with Secs. 3 and 7[3] of Guardian and wards Act [hereafter to be referred to as "the said Act"] and prayed that proceedings initiated by the petitioner under Sec. 25 as well as under Sec. 12 of the said Act are not maintainable at law and therefore, application exh. 1 preferred under Sec. 25 requires to be rejected. Such application preferred by the petitioner in the District court is a plaint and the same can be rejected under Order 7 Rule 11 of Civil procedure Code if the same is found infirm and unsustainable proceeding. The learned judge allowed the application exh. 11. The order under challenge is a common order dated 22nd October, 2008.

(3.) ACCORDING to the petitioner, the order under challenge passed by the learned lower court is illegal, unsustainable and patently contrary to the equity and good conscience and against the interest of minor Akshada. While dealing with application exh. 11, the learned Judge has absolutely failed in considering various legal as well as factual aspects emerging from the record and also the conduct of the respondent, father of minor Akshada.