GAURAV NAGPAL Vs. SUMEDHA NAGPAL

JUDGEMENT

(1.) SHRI Rajiv Atma Ram, learned Senior counsel appearing for the appellant has submitted that vide order dated 10.2.2004, the Guardianship Court was directed to expedite the matter and to decide the same within three months by taking proceedings from day to day, if necessary. Since the proceedings were not being concluded, the time for deciding the case by the Guardianship Court was being extended. During the pendency of the decision vide order dated 20.10.2003 as an intrim measure, it was directed that the father will bring the child to this Court on last Saturday of every month. The petitioner, thereafter, filed Civil Miscellaneous No. 18795-C-II of 2003 seeking clarification of the order dated 20.10.2003. Mr. Rajiv Atma Ram submits that the learned Single Judge vide order dated 4.12.2003 without issuing notice of motion to the appellant, clarified the same. Vide order dated 10.2.2004, the matter was adjourned to 29.3.2004 to await the decision by the Guardianship Court. After coming to know of the clarificatory order, the appellant filed Civil Miscellaneous No. 4740 of 2005 stating therein that the child is not willing to meet the mother though he has been offering the mother to meet the child. Mr. Atma Ram also refers to the report given by the Duty Magistrate, Gurgaon on 28.12.2003 in which it is stated that the child, who had been brought to the Court for meeting the mother, had bluntly refused to meet her. The proceedings are still pending before the Guardianship Court at Gurgaon. Inspite of the order earlier passed by this Court in which it had been directed that C.O.C.P was adjourned to await the decision of the Guardianship Court, the same has been decided finally vide order dated 9.3.2005. On that date, the learned Single Judge has passed the following orders :

(2.) SHRI Atma Ram has pointed out that the custody of the minor child had never been granted to the mother. In fact, she had withdrawn her claim for custody, which is apparent from the order passed by this Court. A perusal of the order dated 30.9.2002 shows that when the matter came up for admission on 14.5.2002, the petitioner had confined her prayer to meet the child on certain occasions, meaning thereby that she did not pray for interim custody of the child. The child is now stated to be in custody of the grand-mother. Learned counsel for the appellant has brought to our notice a judgment of the Hon'ble Supreme Court in the case of Hari Nath Sharma v. Jaipur Development Authority, (1995)4 Supreme Court Cases 251, in which it was argued by learned counsel for the appellant that since the order is an appealable one, the least that the Court owed to its own sense of fairness and justice, was to suspend the sentence for a reasonable time to enable the appellant to approach the higher Court. In the aforesaid case, while issuing notice the Supreme Court had directed interim suspension of the order of conviction and sentence. The appellant therein had been directed to be released from custody forthwith. In the present case, the matter inter parties had reached the Hon'ble Supreme Court in Writ Petition No. 34 of 2000 decided on 3.3.2000 which is reported as Sumedha Nagpal v. State of Delhi and others, (2000)9 Supreme Court Cases 745. In this case, the wife had filed a petition for custody of the child, who at the relevant time, was only two years of age. While dealing with this issue, the Hon'ble Supreme Court observed as follows :-

(3.) NOTICE of motion for 26.4.2005.