Nawroz Salam vs Sukanya Roy

Dalveer Bhandari, J.

(1) This revision petition has been filed by the petitioner u/s 115 of the CPC for quashing and setting aside the order dated 9th January, 1995 passed bed by the learned Additional District Judge.

(2) A petition for grant of divorce by mutual consent was filed under Sections 28(1) and 28(2) of the Special Marriage Act, and was disposed of by order dated 4/09/1991. The learned Additional District Judge granted divorce by mutual consent to the parties. The parties to the above petition have settled all their disputes and claims on certain terms.

(3) It has also been agreed between the parties that the minor child Ishan Roy Salam shall remain under the care and custody Dr. Ms. Sukanya Roy (respondent in this petition). It was agreed between the parties that the petitioner No.1 shall have the right to visit and take the minor child with him twice a month on alternate Saturdays.

(4) It was agreed that the minor child would accompany the father on the 2ndand 4th Saturday of the month in the morning and shall be restored to the respondent the following morning i.e. on Sunday morning after the 2nd Saturday and by the evening of the 4th Saturday, on the same day. The petitioner No.1 may take the minor child with him during the day time or any one additional day of the month in consultation with the respondent on a day which was convenient to both the respondent and the child.

(5) The petitioner moved an application u/s 151 CPC for modification of the order passed by the learned Additional District Judge in the mutual consent petition.

(6) The petitioner contended that he was working with Pertech Computers (P)Ltd. as General Manager. The employer had decided to send the petitioner to the United States of America, on posting in marketing operations in Computers for a period of 3 to 5 years. Such a posting was essential for his career advancement. It may be pertinent to mention that the petitioner after obtaining the decree of divorce by mutual consent has again married. Similarly, the respondent has also married an Indian, settled in Australia in September, 1994. Therefore, such change in circumstances will make it practically impossible for the petitioner to carry on with the terms and conditions as mutually agreed and envisaged.

(7) The petitioner sought indulgence of the learned Additional District Judge to amend the terms and conditions with regard to his visiting and meeting rights to his minor child Ishan Roy Salam.

(8) The petitioner sought that he may be allowed to keep and meet his minor child for 24 days at a stretch every year during the long vacation. The learned Additional District Judge while amending the earlier order mentioned that in case the father is desirous of meeting his child, he will be at liberty to visit him after giving prior information in writing to the respondent in Australia in terms of the mutual agreement between the parties which formed a part of the decree of divorce dated 4.9.91. The Court also mentioned that the Australian High Commission and other concerned authorities will be at liberty to issue visa for the child forthwith as per law, without insisting for no objection of the father of the child.

(9) 1 have heard the learned Counsel for the parties at length. Apart from the issue of deciding the visiting rights of the petitioner, another issue which is inherent in this case is of paramount importance and that is the welfare and interest of this minor child Ishan Roy Salam, born out of the wedlock of the petitioner and the respondent particularly, because both the petitioner and the respondent have re-married and are likely to settle in the United States and Australia respectively in near future at least for a few years.

(10) It is clearly mentioned by the petitioner that it would not be possible for him to visit Australia to see the child. He prayed that he may be allowed to spend time with the child as and when the child comes to India along with the respondent or otherwise. The learned Counsel appearing for the respondent on instructions categorically mentioned that the respondent would have no objection if the petitioner spends time with the said child.

(11) In order to ensure the rights of the petitioner, it is directed that,A. the petitioner would be provided free access to the child by the respondent; B. the respondent undertakes to inform the petitioner at least four weeks before her every visit to India by cable, telephone and/or letter so that the petitioner can also organize his programme accordingly and can make it convenient to come to India to spend the time with the child Ishan Roy Salam.

(12) The learned Counsel for the parties give undertaking to this Court that the spirit of this order shall be carried out in the true sense and there shall be no breach of the undertaking. In case there is any breach of the undertaking, the parties would be at liberty to move this Court for appropriate directions.

(13) The other important aspect which arises in this case is the serious concern and interest of the Court in the well being and future welfare of the child Ishan particularly because both his parents after obtaining a decree of divorce by mutual consent have re-married. After the passage of time, perhaps, they may not have the same interest in the welfare of Ishan. The welfare and interest of Ishan is the paramount consideration of the Court. To protect the interest of Ishan, on Court''s suggestion, the petitioner has readily deposited Rs.1 lakh with the Registrar of this Court and similarly, the respondent has willingly deposited Rs. 75000.00 with the Registrar of this Court. This amount shall be utilised for the welfare of Ishan.

(14) The learned Counsel for the respondent submitted that her client would properly look after the interest of Ishan and similarly the petitioner has also given4 an undertaking that he shall continue to pay the maintenance of Rs. 500.00 regularly as directed by the Trial Court and the said amount would be sent at the address of the respondent either in advance or on month to month basis. Therefore, there seems to be no immediate need of money for the child. But in order to protect the future interest of the child, I direct-the learned Registrar of this Court to initially deposit this amount for a period of 5 years with a nationalised bank and after expiry of the said period of 5 years, renew the deposits of total amount for another 5 years and this will continue until the child Ishan Roy Salam attains majority. Ordinarily, this amount shall not be permitted to be utilised till Ishan attain majority. However, in case of any grave exigency, Ishan shall be at liberty to move the Court for appropriate directions.

(15) After Ishan attains majority, the Court would pass the appropriate orders regarding the manner of disbursing or investing the amount in his interest and welfare. The learned Registrar is directed to send the information to this Court that the amount which has been deposited with him has been invested in a nationalised bank within 4 weeks from today.

(16) The respondent is present in Court and gives an undertaking to the Court that the child''s name as Ishan Roy Salam shall be retained all over, including the school and in the passport.

(17) The petitioner who is present in Court undertakes to give statutory declaration according to the rules of the Australian High Commission, indicating his no objection if the child Ishan is taken to Australia on grant of Australian Visa within one week from today.

(18) I would like to place on record my appreciation for the assistance of the Counsel and of the local Commissioner in finding a suitable solution of a rather intricate human problem.

(19) The order dated 7.1.95 is modified to the extent that the parties would not require any prior permission of the Court for going abroad.

(20) No further directions are necessary. The petition is accordingly disposed of in terms of the aforesaid directions.