Sandeep Mitra alias Sandip Mitra vs Jharna Mitra

Subhro Kamal Mukherjee, J.—This is an appeal against Order No. 24 dated June 11, 2007 passed by the learned Additional District Judge, First Court, Hooghly in Matrimonial Suit No. 81 of 2006.

The husband institutes a suit for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as ''the said Act''). The said application is registered as Matrimonial Suit No. 81 of 2006 and is presently pending in the Court of the learned Additional District Judge, First Court, Hooghly.

The husband files an application u/s 26 of the said Act in the said suit seeking custody of the minor child from the respondent/wife.

By the order impugned, the learned Additional District Judge rejects the said application filed by the husband.

Being aggrieved, this appeal is filed by the plaintiff/husband.

Sub-section (2) of Section 28 of the said Act provides for appeals against orders made under Sections 25 and 26 of the said Act, if they are not interim orders.

As we have indicated hereinabove, the said order is passed in proceedings filed u/s 9 of the said Act. Although the Court below rejects the application filed by the husband u/s 26 of the said Act, the proceedings u/s 9 of the said Act is still pending.

The impugned order u/s 26 of the said Act is passed in the proceedings for restitution of conjugal rights instituted by the husband against his wife. The learned Judge holds that the custody of their minor child will continue with the mother during the pendency of the proceedings. This is an interim order and the arrangement made by the order may be modified at the time of final disposal of the proceedings for restitution of conjugal rights. It is within the ambit of power of the Court to make an interim order of custody of child during the pendency of proceedings for any of the matrimonial reliefs. This order is passed on contest; still, the nature and character of the order is not altered.

The appeal is, therefore, dismissed as not maintainable.

The office is directed to return the certified copy of the order impugned to the learned Advocate-on-record for the appellant upon his furnishing a photo copy of the same.

This order of dismissal shall not prevent the appellant to approach before the appropriate forum in accordance with the law.

In view of dismissal of the appeal, all interlocutory applications are, also, dismissed. We make no order as to costs.

The office is, also, directed to supply xerox certified copy of this order to the applicant, if applied for, on urgent basis.