1. The petitioner has sought for production of her minor daughter Roshni and a further direction to the contesting respondent to produce her passport which was to be handed over to her. The petitioner further seeks a direction that the minor daughter ought to be permitted to go to Virginia, USA in accordance with the directions of the Court at Virginia, dated 12.08.2014
2. This Court had on 5.9.2014 made the following order with regard to the custody of the minor daughter Roshni:-
“Counter affidavits/replies have not been filed by the respondents. The learned counsel for the respondents seek some more time to file his counter affidavit. Let the same be filed within a period of four weeks with an advance copy to the learned counsel for the petitioner. The latter may file a rejoinder thereto within a period of two weeks' thereafter, if so instructed.
We have been informed by the learned counsel for the petitioner that the custody of the petitioner's minor daughter is with respondent No. 2 from 15.04.2014 That as a natural mother she has been deprived of all access to the said child, who is aged about 6 years; that the child has been brought to India by the father-respondent No. 2 without the mother's “consent. We are of the view that the girl child of such tender age needs “the constant care and affection of her mother. She cannot be deprived of” her natural right to maternal affection and vice-verse. It would be in “the child's interest that the mother have immediate access to and care” over her. Therefore, pending consideration of the present writ petition, “we direct respondent No. 2 to handover the temporary custody of the child” to the petitioner today itself. However, during this period of the “custody, respondent No. 2 shall be entitled to meet the child at least” once in two days for about 1-2 hours. We are informed that the child's “parents reside in the same neighbourhood.”
We also direct that the child shall not be taken outside Delhi or “outside the country without permission of the Court. We further direct” that the child's attendance to school shall not hindered by either of her “parents.”
“List this matter before the Roster Bench on 15.10.2014
Dasti.””
3. The second respondent - petitioner's husband had sought for modification of that order vide Crl.M.A 14048/2014. The application was dismissed as withdrawn. Likewise another application preferred by the petitioner for direction - Crl.M.A 14049/2014 was also permitted to be withdrawn. In the light of these directions, the order of 5.9.2014 stands and currently the custody of the minor daughter Roshni is with the petitioner wife.
4. It is contended on behalf of the petitioner that having regard to the order of the concerned Competent Court which directed - on 12.8.2014, that the custody of Roshni ought to be handed over to the petitioner, this court should give that order appropriate weight and ensure that custody is vested in her. It is also contended that the previous order of the Court - dated 15.10.2014, recording some kind of arrangement in terms of which parties had initially agreed to withdraw certain proceedings initiated by the each party, is no longer workable.
5. Counsel for the respondents resisted the proceedings and contended that the respondent's custody of minor Roshni is lawful and that the Court should vacate the order dated 5.9.2014 It is also submitted that now that the custody and guardianship proceedings are pending before the proper Court being G.P.115/2014 (before the Family Court, Tis Hazari Courts), habeas corpus would not be appropriate proceedings, and that the competent Court should be left free to consider and make the suitable orders on the merits of the dispute uninfluenced by the observations of this Court. Learned counsel seriously contested the submissions of the petitioner that the arrangements which had been agreed to were sought to be throttled by the second respondent.
6. It is apparent from the above discussion that the custody of minor daughter Roshni was handed over pursuant to the order of this Court on 5.9.2014 In the light of guardianship and custody proceedings now having been initiated, such custody - under orders of this Court - can at best to be viewed as a temporary arrangement. This temporary arrangement is directed to continue till such time the Family Court Judge in G.P 115/2014 modifies it, either appropriately in an interim application moved on behalf of either of the parties, or finally as the case may be, while disposing of the main proceedings. It is also clarified that the observations made in any previous order or the present order of this Court shall not be construed as an expression on the merits of the case, and the rights and contentions of the parties to urge whatever pleas are available in law, is preserved.
7. The writ petition is disposed of in the above terms.
8. S. Ravindra Bhat, J