Section 6 of the Hindu Minority and Guardianship Act, 1956. - Father filed OP - prayed for custody of child be retained by him and for injunction restraining mother not take child from his custody - Trial court granted injunction pending main petition - in the mean while father shifted his abode from Margao to Bombay - She filed Criminal Writ Petition No.87 of 2013 which had been disposed of by Orders dated 26.8.2013 noticing that proceedings under the Hindu Minority and Guardianship Act, 1956 (HMG Act) were pending in Goa and directing that the Mother should have access to Thalbir in Mumbai at a place near the residence of the Father. Thereafter, as already mentioned above on 31.1.2014, the Order by which the arrangement was reversed in the Impugned Order, came to be passed by the learned Civil Judge, Senior Division, Margao granting custody to the Mother and visitation to the Father in Goa.- Apex court held that The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years.- We also take serious note of the Father, without notifying or taking the permission of the Civil Judge, leaving its jurisdiction along with Thalbir. Prima facie this undermines the authority of the Court and it may even tantamount to contempt of court. Section 26 of the G&W Act has been violated and that too by a person who has not been appointed as the guardian. - In the course of the hearings before us temporary visitation rights were granted to the Mother under the provision of a social worker who had been appointed by the Maharashtra State Legal Service Authority.-The Reports of the Social Worker lucidly indicate that at present Thalbir is extremely comfortable and happy in the company of his Mother but becomes agitated at the sight of his Father when he has to return to him. The Social Worker has also fervently pleaded that her Reports should be kept sealed for fear of the Father. This is extremely disturbing to us just as we expect it should be to the Father also. - Here, the Father ought not to have left the jurisdiction of Court in Goa which was discharging its duties as parenspatirae. This seems to have been completely lost sight of and instead the learned Single Judge has given premium to the unauthorised relocation. We have already mentioned the Criminal Petition 87/2013 which was disposed of by permitting the Mother to meet Thalbir; but keeping in view the pendency of proceedings in Goa, the Court rightly did not interfere with or alter or modify any of the Orders passed by the Court in Goa. Forum shopping or Court shopping requires to be firmly dealt with. The second learned Single Judge ought to have kept in mind that it was the Father who has started proceedings in Goa where the Mother was then also residing having, prima facie, been constrained to give up her employment in the Calfornia, U.S to be in a position to look after her infant son Thalbir. Co-ordinate Benches must respect prior orders.- The learned Single Judge in Writ Petition 79 of 2014 has categorically ordered that whilst the custody of Thalbir shall continue with the Father, the Mother shall get "visitation rights" which he temporarily fixed at least three days in a week "at a mutual agreeable place preferably within the jurisdiction of the Court," situate in Goa; the Trial is continuing in Goa. We fail to locate or appreciate any reason or justification for the intervention of the High Court in Writ Petition 576 of 2014 which is the subject matter of Civil Appeal of 2015 arising out of SLP (C) 32581 of 2014 by a different learned Single Judge. - Here, the Father ought not to have left the jurisdiction of Court in Goa which was discharging its duties as parens patirae. This seems to have been completely lost sight of and instead the learned Single Judge has given premium to the unauthorised relocation. We have already mentioned the Criminal Petition 87/2013 which was disposed of by permitting the Mother to meet Thalbir; but keeping in view the pendency of proceedings in Goa, the Court rightly did not interfere with or alter or modify any of the Orders passed by the Court in Goa. Forum shopping or Court shopping requires to be firmly dealt with. The second learned Single Judge ought to have kept in mind that it was the Father who has started proceedings in Goa where the Mother was then also residing having, prima facie, been constrained to give up her employment in the Calfornia, U.S to be in a position to look after her infant son Thalbir. Co-ordinate Benches must respect prior orders.- We also have taken due note of the Reports filed by the Social Worker and have heard the Counsel for the parties in this regard. We record our appreciation for the diligence with which she has performed her duties. In the event that her fees/ expenses have not been defrayed by the Father, the remainder shall be paid by the Maharashtra State Legal Services Authority. We transfer the temporary custody of Thalbir to the Appellant/Mother with the direction that both of them shall reside in the address given by her, viz, House No.80, Magnolia, Ground Floor, Bin Waddo, Betalbatim, Goa and will not leave that territorial jurisdiction of the Trial Court without prior leave. We further direct that the Respondent/Father shall have visitation rights between 2.30 p.m. and 6.00 p.m. on every Tuesday and Thursday, and from 2.30 p.m. to 9.00 p.m. on Saturdays. These Orders are purely temporary in nature. The Civil Judge should decide the Petition/application pending before him with expedition, as directed by the High Court, without being influenced by any observations made by us hereinabove. -2015 S.C. MSKLAWREPORTS

  Section 6 of the Hindu  Minority  and  Guardianship  Act,  1956.  - Father filed OP - prayed for custody of child be retained by him and for injunction restraining mother not take child from his custody - Trial court granted injunction pending main petition - in the mean while father shifted his abode from Margao to Bombay  - She  filed Criminal Writ Petition No.87 of 2013 which had been disposed  of  by  Orders dated 26.8.2013 noticing that  proceedings  under  the  Hindu  Minority  and Guardianship Act, 1956 (HMG Act) were pending in Goa and directing that  the Mother should have  access  to  Thalbir  in  Mumbai  at  a  place  near  the residence of  the  Father.    Thereafter,  as  already  mentioned  above  on 31.1.2014, the Order by which the arrangement was reversed in  the  Impugned Order, came to be passed  by  the  learned  Civil  Judge,  Senior  Division, Margao granting custody to the Mother and visitation to the Father  in  Goa.- Apex court held that The HMG Act postulates that the custody of an infant or a tender  aged child should be given to his/her mother unless the father  discloses  cogent reasons that are indicative of and presage the  livelihood  of  the  welfare and interest of the child being undermined or  jeopardised  if  the  custody retained by the mother.  Section 6(a) of HMG Act, therefore,  preserves  the right of the father to be the guardian of the property of  the  minor  child but not the guardian of his person whilst the child is less than five  years old.  It carves out the exception of interim custody,  in  contradistinction of guardianship, and then specifies that custody  should  be  given  to  the mother so  long  as  the  child  is  below  five  years  in  age.   We  must immediately  clarify  that  this  Section  or  for  that  matter  any  other provision including those contained in the G&W Act, does not disqualify  the mother to custody of the child even after the latter's crossing the  age  of five years.- We also take serious note of the Father, without notifying or  taking the permission of the Civil  Judge,  leaving  its  jurisdiction  along  with Thalbir.  Prima facie this undermines the authority of the Court and it  may even tantamount to contempt of court. Section 26 of the  G&W  Act  has  been violated and that too by  a  person  who  has  not  been  appointed  as  the guardian. - In the course of the hearings before us  temporary  visitation  rights were granted to the Mother under the provision of a social  worker  who  had been appointed by the Maharashtra State Legal Service  Authority.-The Reports of the Social Worker lucidly  indicate that at present Thalbir is extremely comfortable and happy  in  the  company of his Mother but becomes agitated at the sight of his Father  when  he  has to return to him.  The Social Worker has also  fervently  pleaded  that  her Reports should be kept sealed for fear of the  Father.   This  is  extremely disturbing to us just as we expect it should be to the Father also. - Here, the Father ought not to  have  left  the jurisdiction of Court in Goa which was  discharging  its  duties  as  parenspatirae.  This seems to have been completely lost sight of and  instead  the learned Single Judge has given premium to the unauthorised  relocation.   We have already mentioned the Criminal Petition 87/2013 which was  disposed  of by permitting the Mother to meet Thalbir; but keeping in view  the  pendency of proceedings in Goa, the Court rightly did not interfere with or alter  or modify any of the Orders passed by the  Court  in  Goa.  Forum  shopping  or Court shopping requires to be firmly dealt with.  The second learned  Single Judge ought to have kept in mind that it was  the  Father  who  has  started proceedings in Goa where the Mother was then  also  residing  having,  prima facie, been constrained to give up her employment in the Calfornia,  U.S  to be in a position to look after her infant son Thalbir.  Co-ordinate  Benches must respect prior orders.-  The  learned  Single  Judge  in  Writ  Petition  79   of   2014   has categorically ordered that whilst the  custody  of  Thalbir  shall  continue with  the  Father,  the  Mother  shall  get  "visitation  rights"  which  he temporarily fixed at least three days in  a  week  "at  a  mutual  agreeable place preferably within the jurisdiction of the Court," situate in Goa;  the Trial is continuing in Goa.  We fail to locate or appreciate any  reason  or justification for the intervention of the High Court in  Writ  Petition  576 of 2014 which is the subject matter of Civil Appeal of 2015 arising  out  of SLP (C) 32581 of 2014 by a different learned Single Judge. -  Here, the Father ought not to  have  left  the jurisdiction of Court in Goa which was  discharging  its  duties  as  parens patirae.  This seems to have been completely lost sight of and  instead  the learned Single Judge has given premium to the unauthorised  relocation.   We have already mentioned the Criminal Petition 87/2013 which was  disposed  of by permitting the Mother to meet Thalbir; but keeping in view  the  pendency of proceedings in Goa, the Court rightly did not interfere with or alter  or modify any of the Orders passed by the  Court  in  Goa.  Forum  shopping  or Court shopping requires to be firmly dealt with.  The second learned  Single Judge ought to have kept in mind that it was  the  Father  who  has  started proceedings in Goa where the Mother was then  also  residing  having,  prima facie, been constrained to give up her employment in the Calfornia,  U.S  to be in a position to look after her infant son Thalbir.  Co-ordinate  Benches must respect prior orders.- We also have taken due note of the Reports filed by the Social  Worker and have heard the Counsel for the parties in this regard.   We  record  our appreciation for the diligence with which she has performed her duties.   In the event that her fees/ expenses have not been defrayed by the Father,  the remainder shall be paid by the Maharashtra State Legal Services Authority.  We transfer the temporary custody of Thalbir to  the  Appellant/Mother with the direction that both of them  shall reside in the address  given  by her, viz, House No.80, Magnolia, Ground Floor, Bin  Waddo,  Betalbatim,  Goa and will not leave that territorial jurisdiction of the Trial Court  without prior leave.  We  further  direct  that  the  Respondent/Father  shall  have visitation rights between 2.30 p.m. and  6.00  p.m.  on  every  Tuesday  and Thursday, and from 2.30 p.m. to 9.00 p.m. on Saturdays.   These  Orders  are purely  temporary  in  nature.   The   Civil   Judge   should   decide   the Petition/application pending before him with expedition, as directed by  the High Court,  without  being  influenced  by  any  observations  made  by  us hereinabove. -2015 S.C. MSKLAWREPORTS

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Or.39, Rule 1 & 2 and Sec. 151 and sec.94 of C.P.C - Police aid when to be granted - hear both parties when resisted - to avoid dispossession of actual possessor with the help of police aid - identify the property before issuing of police aid with the help of advocate commissioner if necessary - since the defendant pleaded that before the filing of suit and after filing of the suit ,he never trespassed into the suit schedule property nor violated interim injunction order - even though no evidence of violation of injunction not filed , the lower court feels that no prejudice would be caused to the respondent when police aid is granted -2013 A.P. msklawreports

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