Rishi Agarwal vs Dipika Agarwal (Nee Khaitan)

Ajoy Kumar Mukherjee, J

The aforesaid applications being C.O. 755 of 2019, C.O. 528 of 2020 and C.O. 543 of 2020 are taken up together and disposed of by the following order, since main issue involved in all the applications are interconnected. CO 755 of 2019 has been preferred by Father / petitioner against order dated 5th February, 2019 passed in Act VIII Case No. 17 of 2019, by which court below passed an ad-interim injunction restraining opposite party/mother from taking transfer certificate of the ward from La Martiniere School to any other school till 05.03.2019. On the other hand C.O. 528 of 2020 and C.O. 543 of 2020 have been preferred against the order, where court below allowed visitation right to the father with his daughter on every first and third week of every month in the court room from 2.00 p.m. to 3.00p.m.

In the said Act VIII case no. 17 of 2019, petitioner filed an application under section 12 of the Guardians and Wards Act read with order XXXIX rule 1 and 2 of the Code of Civil Procedure 1908, praying for order of injunction restraining respondent/opposite party from taking the child outside the jurisdiction of the court, without prior permission from the learned court along with other prayers. In the said application it was alleged that opposite party is trying to procure transfer certificate from La Martiniere School to any other school and after hearing the petitioner and on perusal of the documents, the court below was pleased to pass aforesaid restraining order.

Mr. Uday Gupta learned Counsel appearing on behalf of the petitioner submits that learned judge did not at all consider the other prayers in the interlocutory application which are very relevant at this stage. Learned Judge failed to appreciate that the order restraining the opposite party from taking the child outside the jurisdiction of the learned court without prior permission of the learned court should have been passed. He should have also passed necessary direction so that the custodian of the child, regularly send the girl to the school and he should have ordered that temporary custody be handed over to the petitioner for betterment and upbringing of the daughter.

Ms. A. Mitra learned counsel appearing on behalf of the opposite party submits that the opposite party hails from Mallarpur in the district of Birbhum where her paternal home is situated. Her marriage with the opposite party was solemnized on 24th November, 2012 and a girl child was born due to said wed lock on 23rd October, 2013. She further alleged that on 5th October, 2018, when the petitioner was staying at her matrimonial home her mother-in-law lodged an FIR against her and she was compelled to leave her matrimonial home and took shelter in a transit flat situated at south city residence at prince Anwar Saha Road, before she moved her paternal home primarily to complete ward’s academic session at La Martiniere School for girls. Then she started to stay at her parental house since December, 2018. Sometime in January, 2019 petitioner/Father/husband filed a suit for dissolution of marriage. She further submits when a lady experiences matrimonial discord and suit for dissolution of marriage as well as criminal case filed against her, it became impossible for her to stay at matrimonial home and under such factual background she left her matrimonial home.

From the order impugned it appears that ad interim injunction order was passed till 05.03.2019. It is not known as to whether the said order is still in force or not. Be that as it may fact remains that the order was ad interim in nature and when an application has been filed by the petitioner herein under section 12 of the Guardians and Wards Act read with order XXXIX rules 1 and 2 of the code of civil procedure, said application is to be finally disposed of, specially when petitioner/husband has alleged, while passing ad-interim order court below did not consider other prayers of injunction application. In view of above the trial court is directed to dispose of the injunction application filed under order XXXIX rules 1 and 2 of the code of Civil Procedure in connection with the petitioner’s application under section 12 of the Guardians and Wards Act, preferably within period of four weeks from the date of communication of the order, without being influenced by any observation made herein.

C.O. 755 of 2019 is accordingly disposed of.

C.O. 528 of 2020, C.O. 543 of 2020

Both the aforesaid applications under article 227 of the constitution of India have been directed against the order no. 27 dated 05.02.2020 passed in Act of VIII Cases No. 17 of 2019. By the impugned order learned Trial Court was pleased to dispose of Father’s prayer for visitation of the ward. Both Father and mother of the ward, being aggrieved by the same order preferred C.O. 528 of 2020 and 543 of 2020 respectively. As stated above by the impugned order court below allowed visitation right in favour of father /petitioner on every first and third week of every month in the court room at Alipore from 2.00 p.m. to 3.00p.m. and further pleased to close evidence of petitioner as petitioner/father on that day failed to bring witness before the court.

Partly aggrieved by that order Father/petitioner contended that learned judge ought to have allowed the prayer that the opposite party should bring the daughter for continuing her studies in La Martiniere school and he should not have closed the evidence of petitioner/father in a whimsical manner in derogation of the principles of natural justice.

On the other hand mother/petitioner preferred C.O. 543 of 2020 being aggrieved by self same order dated 5th February, 2020. The causes which aggrieved Mother/petitioner in preferring said application are principally for the reasons that said order was passed behind her back and keeping her in dark and for which she could not even file written objection against that application seeking visitation of ward. She alleged that returnable date did not appear in the daily cause list till the morning of 6th February 2020 but surprisingly the matter was heard and disposed of on 5th February, 2020, without giving any opportunity to the Mother/petitioner herein to object and as such, the order impugned suffers from complete violation of the principles of natural justice. Her other limb of argument is that direction giving in the impugned order requiring the minor to be produced before the court at frequent interval would cause undue hardship and inexplicable sufferings to the minor and would also have an adverse impact on the mental health of the minor and would result in compromising her well being, considering the age of the minor and the length of distance required to be covered by her.

While dealing with the petitioners prayer for visitation of the ward the court below held that the Father/petitioner will have a right to visit with his daughter on every First and third Week of every month in the court room from 2 p.m. to 3 p.m. and respondent mother will produce the minor girl before the said court at Alipore and he was pleased to refuse the other prayers of the application dated 16.07.2019.

Learned counsel appearing on behalf of both the parties are ad idem on the point that the court premises is not congenial place for visiting purpose and as such both the parties raised objection about the venue of visitation. The other part which aggrieved the father/petitioner by the order impugned is that the court below has closed the evidence on behalf of the petitioner as he was not present with his witness to adduce evidence on the date fixed. As regards the court’s finding that the evidence of the petitioner is closed as petitioner was not present with witness on the date fixed appears to be harsh for effective and conclusive adjudication of the dispute between the parties. The said portion of the order dated 05.02.2020 is here by set aside considering the fact that there is nothing to show that said non-appearance on the part of petitioner was intentional. Accordingly learned trial court is directed to give sufficient opportunity to the petitioner for adducing evidence on his behalf for effective adjudication of the proceeding.

As regards the other part of the order which relates to visitation of the ward by the father, passed by the court below in the impugned order, it is undisputed that the court premises is not congenial place for the purpose of visitation. However, the real dispute lies on the point that the opposite party/mother had taken away the child from Kolkata School and has admitted her in a School at Gurgaon, in the state of Haryana. The petitioner submits that he has every right to visit the child but the opposite party has deprived the petitioner who is the father of the ward from his right of visitation. In fact petitioner submits that he is ready and willing to take rented accommodation or to purchase a flat, where the opposite party should bring the child and reside here permanently and readmit the child in the La Martiniere School for girls and the petitioner be given access to visit the child at regular interval. Such proposal has been opposed by the opposite party/mother whose contention is for the welfare and benefit of the child, she is now studying at school in Gurgaon for a considerable period of time and it would not be in the child’s interest to shift the child from Gurgaon to Kolkata at this moment.

Considering the aforesaid facts and circumstances of the case and submission made by both the parties, the order regarding visitation passed by the court below dated 05.02.2020 is hereby modified to the extent that the petitioner father will hire a suitable flat within the jurisdiction of Barasat court within a period of two weeks from the date of communication of the order and opposite party mother will bring the ward in the said flat in the first half of third Saturday of every month and will be there at least till first half of the next day i.e. third Sunday and petitioner father will be at liberty to visit the ward in the said flat for 2 hours on each date at a convenient time to be decided by the parties, keeping in mind the welfare of the child. However this arrangement will continue for a period of three months from the date of communication of the order and this arrangement in connection with the visitation can be altered in a particular month on consent of both the parties, taking into consideration the welfare of the child. The parties will also be at liberty to pray for renewal and or modification of the arrangement as above after expiry of three months, before the trial court, if the Act VIII case no. 17 of 2019 be not disposed of within that period. The cost of hiring flat, journey and all other incidental costs shall be borne by the Father/petitioner. The order dated 5th February, 2020 is accordingly modified to that extent.

C.O. 528 of 2020 & C.O. 543 of 2020 are also accordingly disposed of . There will be no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.