Whether mother can withdraw main petition after obtaining custody of child at interim stage?

Now, an issue concerning appointment of a guardian focuses on the
welfare of the child. The warring couple are not the parties affected. They
may be parties interested. The affected party is the child. Thus, where one
spouse files an application to be appointed as a guardian of the child which
is opposed by the other and if the interim custody of the child is with the
petitioner spouse, if the petitioner spouse seeks to withdraw the petition the
respondent spouse can seek transposition, for the reason having taken
advantage of interim orders the petitioner spouse cannot thumb the nose at
the respondent spouse.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Date of Decision : August 17, 2016
MAT.APP.(F.C.) 99/2014
SOMESHWAR DAYAL 
versus
ANUPAMA DAYAL ..
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MS. JUSTICE PRATIBHA RANI


1. For the reasons stated in the two applications 30 days’ delay in filing
the reply and 61 days’ delay in re-filing the reply to CM No.8462/2016 is
condoned.
2. Both applications are disposed of.
CM No.8462/2016
1. Developments statedly having taken place during pendency of the
appeal are sought to be brought on record.
2. The application is allowed.

1. An interesting question arises for consideration and regretfully the 
respondent has chosen to abstain from appearing. None appeared for the
respondent yesterday. The appeal was re-notified for today. None appears
for the respondent even today.
2. The interesting question which arises is : whether a spouse who seeks
custody of the children by moving a petition under Section 25 of the
Guardians and Wards Act and obtains interim orders can one day withdraw
the proceedings and continue to take benefit of the interim orders? The
question would subsume the question : whether the other spouse can seek to
be transposed as the petitioner?
3. The respondent filed a petition under the Guardians and Wards Act
seeking a declaration to be declared the sole guardian of Master Neel and
Baby Teesta. The former being a male and the latter a female. She obtained
the interim orders in her favour and on the strength thereof she put the
children in Sri Ram School, Gurgaon. On the strength of the same she
removed the children from Sri Ram School, Gurgaon and got them admitted
at Sela Qui International School, Dehradun. After the issues were settled the
respondent filed an application to withdraw the petition filed by her. The
appellant opposed the petition pleading that having taken advantage of
interim orders passed in the petition the respondent cannot simply walk out.
The learned Judge Family Court allowed the respondent to withdraw the
petition. The impugned order is dated July 28, 2014.
4. From the documents filed by the appellant we find that even post July
28, 2014 the respondent is taking the benefit of the interim orders in her
favour. Writing letters to the Principal of Sri Ram School, Gurgaon the
respondent has successfully ensured that the father cannot meet the children
in the school. At Sela Qui, which is a boarding school, on the strength of the
interim order the respondent has ensured that the school authorities do not 
give any access to the appellant to the children. The letters and the e-mails
shown to us evince that the school authorities are apprehensive of legal
action taken by the respondent against them if without respondent’s consent
the school authorities permit the appellant to meet the children who, as noted
above are in a boarding school. We find that as recent as on May 10, 2016
the respondent has written to the school that without her permission the
school authorities cannot permit any interaction between the appellant and
the children. She asserts her right on the strength of interim orders obtained
by her during the pendency of the guardianship petition.
5. Now, an issue concerning appointment of a guardian focuses on the
welfare of the child. The warring couple are not the parties affected. They
may be parties interested. The affected party is the child. Thus, where one
spouse files an application to be appointed as a guardian of the child which
is opposed by the other and if the interim custody of the child is with the
petitioner spouse, if the petitioner spouse seeks to withdraw the petition the
respondent spouse can seek transposition, for the reason having taken
advantage of interim orders the petitioner spouse cannot thumb the nose at
the respondent spouse.
6. We allow the appeal and set aside the order dated July 28, 2014.
Guardianship Petition No.25/11 before the Principal Judge Family Court
Sakes Court Complex is restored with the appellant transposing as a
petitioner therein. The respondent is transposed as a respondent therein.
We declare that the interim orders obtained by the respondents have lapsed
and on the strength thereof the respondents cannot assert any right.
7. Concerning visitation by the appellant to meet his children in the
boarding school where they have been admitted by the respondent the
learned Judge Family Court shall pass appropriate orders after serving the
respondent and interacting with the children.
8. No costs.
(PRADEEP NANDRAJOG)
 JUDGE
 (PRATIBHA RANI)
 JUDGE
AUGUST 17, 2016

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