( 1 ) THE short question for our determination in this appeal is that whether learned single Judge while deciding application (IA. 6576/2000) under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short "the Code") has or has not exercised discretion properly.

( 2 ) BY the impugned order the defendant/appellants have been restrained from forcibly taking custody of the minor child from the plaintiff/respondent reserving liberty to the appellants to initiate proceedings in accordance with law to take custody of the child.

( 3 ) THE facts in brief are that on 5. 7. 2000 suit was filed by the plaintiff seeking a decree for permanent prohibitory injunction against the defendant/appellants restraining them from forcibly taking away the child Aaliya, the plaintiff s daughter, from his legal and physical custody or in any manner disturbing the peaceful custody of the child Aaliya from the plaintiff. Decree was claimed, inter alia, alleging that the plaintiff was married to Anju Singh, daughter of appellant No. 1 and sister of appellant no. 2 on 18. 11. 1993 in London. After marriage they came to India in October, 1994 and stayed at flat No. D-506 UNESCO Apartments, New Delhi, which belonged to the parents of Anju Singh and was lying vacant as her parents often stayed abroad. From the marriage, child Aaliya was born on 24. 9. 1997. In the first week of December, 1999 the plaintiff and Anju Singh shifted to their own apartment at B-13,indian Foreign Service apartments, Mayur Vihar-1, Delhi. Anju died on 10. 1. 2000 at her Apartment in Mayur vihar-1, Delhi. During inquest proceedings, appellant No. 1 and her son made their statements. None of the close relatives suspected any foul play in the death of the wife of the plaintiff and claimed that the deceased was hot headed and short tempered and had committed suicide. Elder sister of the deceased had also sent her statement through fax message from U. S. A. wherein she did not suspect any foul play.

( 4 ). The plaintiff further alleged that appellant No. 2, another elder sister of the deceased living in Canada came to India on 14. 2. 2000 and on 16. 3. 2000 she submitted a 12 page typed written statement to the Sub Divisional Magistrate levelling allegations of harassment and torture against the plaintiff. On 22. 3. 2000 another 7 page supplementary statement contrary to the statement, which she had made earlier was submitted. Appellant No. 1 also changed her position during this period and thereby supported the version of appellant No. 2. On the basis of their statements FIR No. 94/2000 was registered at Police Station Trilok Puri under section 498a/304b/201/34 Indian Penal Code It is further alleged that appellant No. 2, who is aged 37 years is living in Canada. Being a lonely lady she developed a desire of taking Aaliya for her own as a support in her old age and with this motive in mind, she levelled charges against the plaintiff and got the FIR registered against him on false charges. The plaintiff further alleged that Aaliya was and continues to be staying with him and is in his custody, who had been taking proper care of the child. After plaintiff s arrest on 28. 3. 2000 in connection with the aforementioned FIR, minor child stayed at Kasturba Gandhi Marg, New Delhi with plaintiff s parents. Taking undue advantage of plaintiff s arrest, the appellants came to the residence of the parents of the plaintiff on 28. 3. 2000 in the forenoon and lured the minor on the pretext of taking her for outing and took her away with them. They did not return the child to the plaintiff s parents. Accordingly, an applicant was sent by the plaintiff from jail to the court of Additional Metropolitan Magistrate, Karkardooma on 6. 4. 2000. While in judicial custody, the plaintiff apprehended that the appellants had intention to take away Aaliya from the jurisdiction-of the Court, which led in filing Habeas Corpus petition (CW. 252/2000), in which this Court restrained the appellants from taking

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