Important Points:
If the person in custody of the child disobeys the order passed under Section 12 (1), he incurs the liability for payment of prescribed amount of fine as well as detention in civil prison- Unlike the Scheme of the Code dealing with execution of decrees and orders of civil courts, Section 45(1) does not seem to limit the order of detention to any specific period- The detention takes its course until the child is produced or guardian in default undertakes to cause production of the child in compliance with the order of the court- The undertaking made by the recusant guardian, in our view, may be accepted by the court only in a case where it is made with bona fide intention to cause production of the child
Orders of fine and detention passed without notice to the respondent and minimal enquiry into the cause for non-production of child, would be violative of principle of natural justice and therefore illegal. We are also not forgetful of existence of a different but independent power possessed by the Family Courts under Section 25 (2) of the G&W Act to cause arrest and production of the child through issue of search warrant under Section 97 of the Code of Criminal Procedure, 1973 (Section 100 of old Code) in appropriate cases. But, such power under Section 25 (2) of the G&W Act is rarely exercised, but is confined to limited situations arising under Section 25(1). Section 25 is an independent provision which can stand apart from Section 12(1). These two provisions may overlap in certain cases. Section 25, however, is no remedy for breach of orders passed under Section 12 (1) of the G&W Act though the converse may be true.

T.V. Anilkumar, J.

The petitioner, who filed this original petition invoking jurisdiction of this court vested under Article 227 of the Constitution of India, is the petitioner in OP.(G&W) No.645/2015 on the files of the Family Court, Chavara, filed for declaring him as guardian of the minor wards, Muhammed Rifan and Aisha Suhana.

2. He obtained an interim order from the Family Court, Chavara on I.A.No.1166/2017 on 19.9.2017 directing his wife, the respondent herein, to handover custody of the two minor wards to him on every 2nd Saturday and succeeding Sunday, until further orders. None of the parties challenged the order before any superior forum and it became final. The petitioner's complaint is that, he was prevented by the respondent from securing interim custody of the wards by her willful act of disobeyance of the order. He therefore sought to enforce the order through I.A.No.637/2018 before the court below by invoking Order XXXIX of Rule 2-A of the Code of Civil Procedure (for short 'the Code') to which no written objection seems to have been filed by the respondent so far. It is alleged that, in spite of a series of postings, the court below is reluctant to take up and dispose of I.A.No.637/2018. The petitioner has, in the above circumstances, approached this court seeking to issue a direction to the court below for expeditious disposal of I.A.No.637/2018.

3. In the nature of the limited relief proposed to be granted to the petitioner, we dispense with notice to the respondent. This court had obtained a report called for from the learned Judge, Family Court, Chavara, about the maximum time required for disposal of I.A.No.637/2018.

4. The learned Judge has reported that, after giving to the respondent a few postings for filing objections to I.A.No.637/2018, she was always ready to dispose of the matter in accordance with law. But she was dissuaded from proceeding any further, since learned counsel for the petitioner appearing in the court below reported that the petitioner lost faith in the court. The learned Judge was also informed that steps were being taken through this court for transfer of the case from her court to another court. She therefore became hesitant to proceed further with the case and was waiting for orders of transfer from this court. The learned Judge in the report made a request to this court to spare her from deciding the case so that unfounded allegations, if any, against her in future could be obviated. However, she conveyed her readiness to dispose of the O.P. within a period of three months, if she is called upon by this court to take up the matter.

5. When we put to the learned counsel for the petitioner appearing in this O.P. the contents of the report sent by the learned Judge, he submitted that the petitioner has not expressed loss of confidence as alleged, but only keeps faith in the learned Judge. We take on record the submission made by the learned counsel. He persuaded us to issue necessary direction to the court below for urgent disposal of I.A.637/2018 within a time frame to be fixed by this court.

6. Since the petitioner has expressed his continued faith in the presiding officer, we are inclined to allow this O.P. and to direct the court below to dispose of the I.A.No.637/2018 within three months from the date of production of a copy of this judgment, as agreed upon by the learned Judge. We would only normally have closed this O.P. without proceeding any further but for the emergence of a new situation of law calling for our immediate attention.

7. Evidently the request made by the petitioner in the I.A.No.637/2018 is to initiate proceedings against the respondent under Order XXXIX Rule 2-A of the Code and to prosecute her, the mother of minor wards, for the alleged violation of order dated 19.9.2017. Order XXXIX Rule 2-A does not appear to us to provide the petitioner with appropriate legal remedy for enforcing the impugned order passed by the Family Court, Chavara under Section 1