MISHRA, J. - (1.) Respondent Konel Parekh and the appellant Radhika were married in accordance with Hindu rites on 1st of April, 1990 and a male child was born to them on 30/03/1991. On 16-12-1991, however, Konel filed O.P. No. 694 of 1991 in this court seeking his appointment as the guardian of the son born on 30/03/1991, named parthiv and also for other reliefs. He applied for a direction that he be given interim custody of Parthiv in Application No. 6404 of 1991 in the said petition, O.P. No. 694 of 1991. Radhika, the appellant, responded to the notice stating inter alia that she had moved the family Court at Bombay seeking reliefs inter alia of divorce and for the interim custody of the minor child Parthiv, maintenance and restraint orders on 6-12-1991. The Family Court at Bombay on 11-12-1991 by an order, restrained Konel from forcingly removing the child from her custody. She stated in her return that the order of restraint became necessary in view of the fact that the respondent had physically deprived her of the company of her then seven month old minor child between the period 10-11-1991 and 2-12-1991 and had in fact sought to leave the country with the minor child on the night of 8-12-1991 which the appellant with the intervention of the police and pursuant to a complaint to the police was able to stop at a last minute. She said in her return as follows : ".......In fact, the respondent with the minor child had gone to the airport to leave the country and was stopped by the airport staff from checking in for the flight on account of the police complaint and it was only pursuant thereto that the applicant was able to recover the custody of the minor child."
(2.) In his reply to the return of Radhika, Konel, however, said, "I submit that during the period 10/11/199 1/12/1991 the minor child was under the custody of the respondent herein. The events that had happened during this period have been stated by me in my statement made to the police as reply to the FIR filed by the applicant. I wish to state that on 7-11-1991 I, by chance ascertained that my wife was expecting a child. This was the second child. On Friday the 8/11/1991 the pregnancy was confirmed and the doctor declared that the applicant was seven weeks pregnant. My wife insisted that she wanted to have an abortion as she did not want this child. I pleaded before her of the religious intention among jains against adopting abortion. I made my earnest request before her not to kill the child in the womb. When she knew that I was against her wish, she wanted to leave for her parents' place in Bombay. Thereupon on Sunday the 10/11/1991 I escorted her to the airport and purchased for her a round trip air ticket to Bombay and she left the child with me. I requested her to rethink her decision and stay at Madras at least for one more day on 11/11/1991 being my birth-day. All my requests had no effect on her. As expected I was informed by my father-in-law on 16/11/1991 that my wife had an abortion at Bombay. This act of my wife totally shattered me and I flew to Bombay on 17/11/1991 and reached their home around 9 a.m. I was denied an audience with my wife by her parents and they told me that she is taking rest under Doctor's instructions. I did not therefore meet my wife and came back to Madras. I came to know thereafter that on 19/11/1991 she had visited Madras and she had no decency or courtesy to inform me about her stay in Madras. Thereafter she had proceeded to Central Bank of India, Haddows Road Branch, Madras which is hardly a furlong from our house and she had operated the joint safe deposit locker and emptied the contents therein. I came to know of the incident on the afternoon of 2/12/1991 in front of our house and I enquired about that. On 30/11/1991 she called me over phone and at that time I informed her that I was going to Singapore for three days' work. I asked her to return to Madras so that I could travel to Singapore learning the child to her custody and care. She refused to return to Madras saying that she has not fully recovered from her illness. Even during her stay at Madras with me, child was looked after by the governess since she had refused to come down to Madras to take care of the child. Thereafter I informed her that I will take the child with me to Singapore for three days along with my mother and will be back on 6/12/1991 by the same airline. In fact I had purchased a return ticket for all of us and the return journey was also confirmed for Friday the 6/12/1991. While so, taking advantage of the fact that I was taking the child to Singapore she made a false complaint to the police as if I am taking the child out of India for ever and she made a false complaint to the police on 2/12/1991 presumably under the Dowry Prohibition Act so that the police will take immediate action. The FIR filed with the police is full of false statements and for the first time the case of illtreatment by my parents and demand for jewellery and cash had been stated."
(3.) It has, however, transpired that Konel, who is an Indian born has, however, become a citizen of the United States of America. He intended to visit Singapore with the child and that a Police complaint was filed which stopped him from taking away the child to Singapore, according to him for a temporary period; according to Radhika with a view to taking away the child from her permanently. The filing of the case for divorce in the family Court at Bombay on 6-12-1991 and the order dated 11-12-1991 are such facts that are not in doubt, according to Konel, however, he did not know about the filing of the case in the Family Court at Bombay or any order passed in any petition that Radhika had filed in the family Court when he moved in O.P. No. 694 of 1991 or the application in Appn. No. 6404 of 1991. Radhika moved in Application No. 60 of 1992 for stay of the proceedings in this Court and both the applications; viz., Application No. 6404 of 1991 filed by Konel for interim custody of the child and Application No. 69 of 1992 filed by Radhika for stay of the proceedings were taken together. The learned Judge, who heard the parties, however, has ordered as follows : "One thing not in dispute between the parties is that their child is an infant just one year old. It is really unfortunate that estrangement between spouces should have arisen within a year of birth of a child when normally they should have been happy with the child born to them to live in amity for a long and happy life. Any way the wife has filed an application in the family Court." "at Bombay for the following relief : The petitioner therefore prays : (a) that the said marriage between the petitioner and the respondent solemnised on 1-4-1990 be dissolved by a decree of divorce; (b) that this Hon'ble Court be pleased to declare that the petitioner is entitled to the custody of her minor child, the said parthiv; (c) that the respondent be ordered and decreed to pay to the petitioner the maintenance at the rate of Rs. 1,00,000/- per month for herself and her minor child the said Parthiv; (d) that it may be declared that the petitioner is entitled to the article of Jewellery, gold and silverware ornaments and silverware; (e) that the respondent be ordered and directed to pay the petitioner a sum of Rs., 50,000/- as and by way of costs of prosecuting this petition; (f) that the respondent be restrained by this Hon'ble Court from travelling abroad or leaving India without the permission of this Hon'ble court till the hearing and final disposal of the petitioner; (g) that the respondent be ordered and/or directed by this Hon'ble Court to furnish adequate security to the satisfaction of this Hon'ble Court and sufficient to meet the petitioner's claim for alimony/pendente lite, costs that are likely to be awarded to the petitioner to meet the costs of the prosecuting of the petitioner and for her appearance in Court; (h) that the respondent be directed to deposit his passport in Court; (i) that the respondent be ordered and directed to return all the clothes and personal effects, ornaments and silverware of the petitioner which are in the matrimonial home; (j) that ad interim and interim reliefs in terms of prayer (c) to (i) hereinabove. (k) and for such other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case." "It is significant to notice that the main relief is for divorce. Interim custody of the child is only ancillary to the main relief." "On the other hand original petition No. 694 of 1991 filed by the husband is for being appointed as the guardian of the minor's person and property. Therefore, it is plain that the questions involved in the Original Petition No. 694 of 1991 of this Court and the proceedings in the Family Court cannot be the same although there may be a little overlapping in the matter of evidence to be adduced in both. Therefore unless the matter in issue in an earlier proceeding is identically in issue in the later proceeding, there cannot be a stay of the later proceeding. That is the principle under S. 10 Civil Procedure Code which whether applicable to the proceedings in question or not has to be appreciated. By application of the said principle even to these proceedings I do not see any basis for stay as prayed for by the wife. Hence Application No. 69 of 1992 is dismissed. No costs." "As regards the interim custody prayed for by the father of the child, one insurmountable difficulty which the father has got to confront is that the child is just one year old. In guardianship proceedings it is well settled law that the Court is concerned mostly for the welfare of the child which is paramount. Hence the father cannot have interim custody of the child, at any rate, at this age of the minor child. The child has to be with the mother. I am of this view not on the grounds set forth by the wife in her application for stay but on the only ground that the child being one year old it has to be with the mother." "However the father should not be left helpless. He is equally interested in the child and bound to have affection. Therefore, it is not just to deprive him of that affection." "Therefore, it is but proper that the father should be permitted to visit the child as frequently as be feels so at Bombay at the residence of his wife and with liberty to take the child for the outings as he desires subject to his leaving the child in the custody of the wife while returning from Bombay. This is the utmost that this Court can grant pending disposal of the main original petition." ;