Order for stay proceedings passed on an application if a judgment.

MISHRA, J.

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 30th March, 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 30th March, 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 November 10, 1991 to December 2, 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 8th November 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 10th November 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 11th November, 1991 being my birth-day. All my requests had no effect on her. As expected I was informed by my father-in-law on 16th November, 1991 that my wife had an abortion at Bombay. This act of my wife totally shattered me and I flew to Bombay on 17th November 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 19th November 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 2nd December 1991 in front of our house and I enquired about that. On 30th November 1991 she called me over phone and at that time I informed her that I was going to Singapore for three days' work. I as