Sg vs Jg
2015 Latest Caselaw 8255 Del

$~1.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                         Date of Decision: 02.11.2015

%        CM(M) 979/2015

         SG
                                                           ..... Petitioner
                           Through:     Mr. Anumaya Mehta with Ms Swati
                                        Gupta, Advocates

                           versus

         JG
                                                               ..... Respondent

                           Through:     Respondent in person

         CORAM:
         HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (OPEN COURT)

1. The respondent has been served. He appears in person and has made his submissions. I have heard learned counsel for the petitioner and the respondent in person.

2. This petition has been preferred by the petitioner under Article 226- 227 of the Constitution of India to seek the setting aside of the order dated 18.05.2015 passed by the learned Principal Judge, Family Court (South), Saket and the order dated 26.07.2014, passed by her predecessor. The petitioner also seeks permission that the minor child be permitted to travel outside the NCR/jurisdiction of the court without the permission of the court.

3. The parties are in a matrimonial dispute. They have a minor daughter, who is in the custody of the petitioner wife. It appears that at the instance of the respondent, an order was passed by the Family Court in Guardianship Petition No.42/2013 on 05.12.2013 to the effect that the petitioner herein shall not remove the child out of the country without prior permission of the court.

4. The respondent, it appears, learnt that the petitioner had applied for a visa for travel to U.K. in respect of the minor child. He then moved an application before the Guardianship Judge, on which notice was issued to the petitioner. The petitioner filed a reply and also filed an affidavit to the effect that the minor child shall not be taken out of the country without prior permission of the court. The petitioner herein also filed a reply to the said application - to the same effect. It was explained that the visa had been applied for, only for a period of 3-4 weeks to travel as a tourist. It was further stated that even the tickets had not been booked, and that mere grant of visa does not tantamount to breach of the order passed by the Family Court on 05.12.2013.

5. On 27.07.2014, the Family Court, inter alia, passed the following order:

"Short reply to the application has been filed. Affidavit to the effect that the child namely PG shall not be taken out from the territorial jurisdiction of this court or for that matter out of jurisdiction/NCR has also been filed.

Keeping in view that it has been undertaken that the child namely PG will not leave the territorial jurisdiction/NCR of this court, as such applications stands disposed of".

6. The submission of learned counsel for the petitioner is that the issue was never with regard to the child being taken out of the territorial jurisdiction of the court, or the NCR. The issue was with regard to the child not being permitted to be taken out of the country. Learned counsel submits that, in fact, the affidavit and the reply also focused on the said aspect only. Learned counsel submits that on account of the direction issued by the Family Court that the minor child shall not taken out of the territorial jurisdiction/NCR, the petitioner is finding it inconvenient to take the child out of Delhi/NCR, even within the country. The petitioner is required to repeatedly approach the court and the schedule - when the child's plan is made to go out of Delhi/NCR, is frustrated.

7. On the other hand, the respondent, who appears in person, submits that the present petition under Article 226-227 is not maintainable. He further submits that the parents of the petitioner are presently in the custody of the Interpol. He further submits that if the child is permitted to be taken out of jurisdiction of this court/NCR, it is likely that she may be made to travel abroad with a fake passport.

8. Though the petitioner disputes the statement that her parents are in custody of Interpol, the said issue is not relevant for the purpose of the present petition. There is no basis for the claim that the petition is not maintainable under Article 226-227 of the Constitution, as it seeks to assail the orders passed by the Family Court, over which this court exercises supervisory jurisdiction.

9. The aforesaid background shows that the real concern of the

respondent is that the child should not be taken out of the country and beyond the territorial waters of the country - where the writ of this court would not run. The real issue was never with regard to the travel of the child beyond the jurisdiction of this court, within the country itself. It is informed that the passport of the child was impounded when valid, and it has since expired. It is further informed that a fresh passport has not been applied for by the petitioner.

10. The petitioner, who is present in court, undertakes that the petitioner shall not, without the permission of the court, make an application to obtain a fresh passport, and that as and when the same is applied, she shall furnish complete information to the court as well as the respondent. She further undertakes that she shall not apply for any visa to the U.K. or to any other country without prior permission of the court in respect of the minor child.

11. I see absolutely no reason to restrict the movement of the child within the NCR. Looking to the background from which the parties come, the child would certainly like to go out of Delhi/NCR on holidays etc. The child is presently studying in third standard and is of eight years old. The restriction put on her movement would even prevent her from taking school trips with her classmates, which would have an adverse impact on her upbringing and psychology.

12. The concerns of the respondent have been met by the aforesaid undertaking given by the petitioner, which shall bind her. She shall file a formal undertaking in this regard before this court. Furthermore, this order shall be communicated to the FRRO so as to ensure that the minor child is not taken out of the jurisdiction of the courts in India, and is not permitted to

travel without the express permission granted by the court.

13. It is, however, directed that whenever the petitioner wishes to take the child out of Delhi/NCR, an intimation in respect thereof shall be filed before the Family Court with a copy to the respondent.

14. Petition stands disposed of in the aforesaid terms.

VIPIN SANGHI, J

NOVEMBER 02, 2015 sr