Manish Kumar Tyagi vs Shobhna Tyagi @ Madhavi
2014 Latest Caselaw 6429 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of Decision: December 03, 2014

+     CM(M) 551/2014
      MANISH KUMAR TYAGI                                 ..... Petitioner
                  Through:              Ms.Rita Kumar and Ms.Anita
                                        Verma, Advocates

                          versus

      SHOBHNA TYAGI @ MADHAVI               ..... Respondent
                   Through: Mr.Santosh Kumar and Mr.Shikhar
                            Garg, Advocates
      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR
                   JUDGMENT

% (ORAL)

Petitioner-husband is aggrieved by impugned order of 9th May, 2014 vide which the concerned Family Court has dismissed petitioner's application to enable him to take his minor child- Manya to a hill station of her choice during summer vacations from 15th May, 2014 to 1st July, 2014 observing that instead of preferring this application, petitioner ought to have approached the Guardian Court in Ghaziabad where he has filed petition under the Guardian and Wards Act.

At the outset, it was put to petitioner's counsel that this petition has become infructuous and the prayer made in this application cannot be granted now and the response of petitioner's counsel was that the impugned order will stand in the way of petitioner seeking custody of his child during winter vacations.

Learned counsel for respondent has supported the impugned order

C.M.(M) No. 551/2014 Page 1 and it is submitted that petitioner had earlier consented to file an application for custody of the child before a Guardian Court in Ghaziabad and so, his application has been rightly dismissed.

Upon hearing and on perusal of the impugned order and order of 2nd June, 2010 (Annexure R-2) and order of 27th November, 2013 of a Coordinate Bench of this Court in C.M.(M) No. 719/2002 Shobhna Tyagi Vs. Manish Tyagi and the material on record, I find that petitioner had earlier consented to file such application before the competent court at Ghaziabad and so, petitioner's application has been rightly dismissed vide impugned order. It is pertinent to note that during the course of hearing, it was revealed that at the time of filing of the application on which impugned order has been passed, petitioner was residing in Delhi but now petitioner is residing in Ghaziabad and the child is also living in Ghaziabad.

No doubt Section 26 of the Hindu Marriage Act permits filing of such application but when petition for custody of the child is pending before the competent court in Ghaziabad, then filing of such an application in the divorce proceedings is unwarranted. The discretion exercised by the courts below is based upon the consent order of 7th April, 2010 (Annexure R-1) and order of 27th November, 2013 of a Coordinate Bench of this Court in Shobhna Tyagi (supra).

Finding no infirmity in the impugned order, this petition is dismissed.

                                                       (SUNIL GAUR)
                                                         JUDGE
DECEMBER 03, 2014
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C.M.(M) No. 551/2014                                                Page 2