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Rohit Kumar Modwel vs Sudipa R. Modwel on 6 December, 1994

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  Calcutta High CourtCalcutta High CourtRohit Kumar Modwel vs Sudipa R. Modwel on 6 December, 1994Equivalent citations: (1995) 1 CALLT 359 HCAuthor: B M MitraBench: B M MitraJUDGMENTBijitendra Mohan Mitra, J.1. The present revisional application is directed against Order No. 2 dated 8th September, 1994 passed by thelearned District Judge at Alipore in Act VIII, Case No. 245 of 1994. By the impugned order the Trial Courthas issued a notice upon the opposite party, wife, directing her to produce the minor daughters before thatCourt on 29.9.94. The petitioner, husband, initiated a proceeding under Section 25 of the Guardians andWards Act on the allegation that as soon as he left his house on 28th June, 1994 for a short trip out of the cityand after his return on 1st July, 1994 the petitioner found that the opposite party and his minor children absentat his residence. He subsequently came to know that his wife along with the said children went to her father'shouse at Siliguri. There are further allegations and/or insinuation that the opposite party, wife, had also takenaway valuables from the residence at the time of departure and the further case that was made that the childrenborn of the said marriage were reading at the material point of time in La-Martinere Girls' School in Calcutta.There was also apprehension expressed in the said proceeding that due to long absence from the School, theirnames might be struck off from the school register and their studies are thereatened to be affected. Thepetitioner in the connected proceeding also made an application for interim order enabling the petitioner tohave the custody of the said minor children.2. The fact of the case in short can be summarised as the parties to the present proceeding were marriedsometime on 14th October, 1984 at New Delhi according to Hindu rites and customs. After consummation of the marriage and out of the same two daughters, namely, (a) Rittika Modwel and (b) Urvee Modwel were bornon 28.11.1986 and 30.9.1989 respectively. The matrimonial home of the parties were situated in the groundfloor of premises No. 55/2, Ballygunge Circular Road, P.S. Ballygunge, in the city of Calcutta. The aforesaiddaughters at the time of initiation of the proceeding for custody were reading in Class-II and Upper NurseryClass of La-Martinere School in Calcutta. The Children have good performance in their academic prosecution.The entire controversy is raised because of sudden displacement of the said children from the city of Calcuttato Siliguri due to the unilateral act of the opposite party and without any intimation to the petitioner and/or hisconsent. The apprehension expressed in the said proceeding is that the education of the children is likely to behampered. The trial court directed production of the said children in the court below on a given date but in themeantime the petitioner alleged that he was threatened with terminaion of his daughters from La-MartinereSchool because of their long absence from their respective classes. As the learned Court below did not passany interim order and fears were expressed that names of the children of the petitioner might be struck off from the school register and this Court was pursuaded to pass an interim order restraining the authorities of La-Martinere School from removing the names of the children born of this marriage from the school register.Thereafter the Court was made to exhaust other avenues to serve the opposite party and the opposite party wasfound to be avoiding service. This Court was made to direct the local police station where the opposite partyresided to serve with notice even by radio message and this Court also gave direction for attendance of thesaid children in the month of October, 1994 to the school during the period when this Court remain closed.The opposite party moved the Vacation Judge of this Court and obtained stay of the order passed by this Courtinclusive of restraint order on the authorities of La-Martinere School. After reopening of the Court thehusband-petitioner made grievance of the same and this Court passed an order whereby the Principal of La-Martinere School was again restrained by an inteim order from striking off the names of the aforesaid twochildren from the said school. The opposite party pleaded before this Court that she had no deliberateintention to circumvent the Court's order and in fact the opposite party's version was that she did not get theorder. According to her, she was not available at the material point of time at her father's residence in Siliguri. Rohit Kumar Modwel vs Sudipa R. Modwel on 6 December, 1994Indian Kanoon - http://indiankanoon.org/doc/351984/1  3. Shorn of details the gist of the justification of the opposite party was that on a certain day she took thechildren about 250 Kms. away in a remote Tea Garden from the school straightway where the said childrenare at present reading. Thereafter the opposite party came to Shantiniketan at Bolpur with her father and thesaid children and came to Calcutta during the vacation and moved a petition in a hurry. Lot of comments weremade by Mr. Bhattacharyya, the learned Advocate appearing on behalf of the opposite party regarding thecorrectness of the allegations. This Court has taken note of the version of the opposite party and is not freefrom doubt about the opposite party's conduct or about the authenticity of the said version. This Court,however, without arriving at a decision about the correctness of the said version but by way of abundantcaution warns the opposite party not to embark in this way as the same may have far reaching consequences.This Court restrains the opposite party from removing the said children during the pendency of the proceedingunder Section 25 of the Guardians and Wards Act from their present place of stay without prior leave of thetrial Court. The opposite party is saddled with further obligation during the pendency of the said proceedingthat before removing the said children from their normal place of stay, the petitioner's father has to beinformed about the proposed whereabout of the journey of the said children and the local police station withinwhose jurisdiction the said children will be taken but on future the opposite party will be required to informabout their arrival and total-period of stay in the proposed place of journey of the said children to the localpolice station. This order has been passed keeping in view the locus standi of the father as a natural guardianof the said minor children as he is also supposed to be vitally interested about the upbringing and welfare of the said children.4. It is significant to mention that orders to be passed under Section 25 of the Guardians and Wards Act are bynature of temporary character. The same is dependent on exigencies of situation and with every change of situation the order may be varied keeping in view the welfare of the children. The application for temporaryorder brings up the question as to whether ex-parte temporary order of custody can be passed within thecompass of Section 25 of the Guardians and Wards Act. However, Section 12 of the said Act confers upon theCourt the power to make interlocutory order for protection of the minor and same may be necessitated forinterim protection of person and property of the minor. Chapter II of the said-Act deals with question relatingto appointment or declaration of Guardians and Sections 5 to 19 of the said Act are included in the saidChapter to modulate the Guardianship proceeding. Chapter III deals with duties, rights and liabilities of theGuardian and Section 25 is included within Chapter III. The question that has been attempted to be argued inthe said context is as to how far and, where the ex-parte interim order is capable of being passed in aproceeding under Section 25 of the said Act and if it can be passed under what circumstances the same will berequired to be passed. Further the controversy has been attempted to be raised about the meaning of the word'guardian' included in Section 25 of the said Act and what does this word signify in the context of combatabout the custody of the children in between the parent. There has been attempt to canvass about the cause of action and the jurisdiction of the court which is competent to try and sort out such dispute. At the conclusion,arguments were advanced by respective parties touching on the question of the welfare of the said childrenwhich is of paramount significance in a proceeding of any nature under Section 25 of the said Act.5. The opposite party's bold assertion before this Court is that the said children are now admitted in a localschool at Siliguri, namely, Tenderfeed School and they are doing very well in prosecution of their studies.Now it is difficult for the court and it has been asked to determine as to which of the two schools, namely,La-Martinere at Calcutta and Tenderfeed School at Siliguri is better one and which will be more efficaciousfor prosecution of the studies for the said minor two children. This Court while exercising its revisional jurisdiction in respect of a matter when the Court in its discretion did not pass any interim order cannot gointo that question and arrive at its own subjective opinion without any objection basis. The preference of theparties about the school may not be a sufficient warrant for arrival of a decision as to which school is betterschool and will be more suited for prosecution of studies of the said two children.6. Mr. Bhattacharyya in respect of his submission has strenuously contended that apprehension aboutuncertainty of studies is of pivotal importance determining the welfare of the said children. It is very difficultto form opinion about the welfare of the said children on the lone count, namely, prosecution of studies when Rohit Kumar Modwel vs Sudipa R. Modwel on 6 December, 1994Indian Kanoon - http://indiankanoon.org/doc/351984/2  the children are of very tender age and they are female children living with their mother. This Court hasinterviewed the said children in the Chamber and found them lively and vivacious. This Court has furthernoted that the children have emotional yearning to be in company of their mother which does not appear to beunnatural. In the present proceeding lot of allegations about want of chastity and fidelity on the part of theoppo. party were made by the petitioner. The opposite partly came with the allegation about physical crueltyon her by the husband-petitioner. The allegations and counter-allegations taken in the proper perspective willhave this court to opine that at the present juncture it is difficult to make them, live together under one shelter.In order to avoid the present stalemate situation the court enquires as to whether the children can beaccommodated in a boarding in view of the mother's propensity to be extroverted in her movements andchildren are being made to withstand the hazards, of such frequent long journey. This Court has gathered theimpression that at present it is difficult to accommodate both of them in the same boarding of La-MartinereSchool. The petitioner was further enquired as to whether he could provide alternative accommodation to themother and the petitioner was not in a position to offer the same. The petitioner was also enquired about theuppermost limit of his capacity to bear financial commitments if the children along with the mother weredirected to stay in Calcutta and the petitioner plainly said that his uppermost limit would be Rs. 2500/- permonth. It is difficult for the opposite party to live in Calcutta at a rented house with her children and tocontinue with her living within the range of the offer meted out by the petitioner. As such this Court could notexplore such possibility to bring about amicable solution of the problem.7. During the course of argument Mr. Somnath Chatterjee, the learned Counsel appearing on behalf of theopposite party, has taken serious objection to the imputation of unchastity levelled by the husband petitioneragainst opposite party for the first time before the present forum. Mr. Chatterjee has depricated such attitudeof the petitioner in no uncertain terms. Mr. Chatterjee has referred to a decision reported in ILR 1949Calcutta, page 374, in the matter of Kamal Rudra, a minor and he has placed reliance about observation of Das J. at page 383 : I have no doubt in my mind that this sordid imputation of unchastity has been made tobolster up the petitioner's claim and a person who is capable of such conduct can hardly be regarded as a fitand proper person to be entrusted with the up-bringing of the child. Mr. Chatterjee has then dwelt with themeaning of the word guardian under Section 25 of the said Act and he has referred to the definition of Section 4(2) of the said Act. In the said context a reference was made about the reported decision of Md.Ramjan Madrey v. Taj and Ors. thereof where the expression of the guardian has been interpreted in a widersense and it is opined by this Court that it does not necessarily mean guardian appointed or declared by aCourt. It was sought to be emphasisted that expression guardian in this section includes a natural guardianor even a de facto guardian. Reference was also made about Hindu Minority and Guardianship Act where incase of a minor son and daughter, number of guardians have been sought to bo included. Section 6 of theHindu Minority and Guardianship Act deals with natural guardian of a Hindu minor and the Court's attentionwas drawn to the prefix of proposition of 'a' which has been added to the guardian and not 'the' meaningthereby that if a word is removed from the custody of any of the guardians as contemplated from thecombined reading of the purual nomenclature of the expression. In the said context a reference was furthermade to a recent decision of our Court reported in AIR 1983 Calcutta page 165 in the case of Raj KumarGupta v. Barbara Gupta. Mr. Bhattacharyya, the learned Advocate of the petitioner, has referred to the case of J. V. Gajre v. Pathan Khan and Ors. , in order to impress this Court that a Hindu father is a natural guardian. Areference may also be made in this context from the side of this Court to a decision reported in the case of Md.Safe v. Samirt Babu , where it has been held that definition of the word 'guardian' has incorporated inSub-section (2) of Section 4 is wider than a legal guardian according to personal law applicable to the parties.The words the person have the care of the minor indicates a qualitative aspect in relation to the minor thanphysical aspect. In view of the expression all guardians included in Section 25 of the Guardians and WardsAct, this Court feels that if a ward is removed from the custody of any of the guardians as contemplated underSection 4(2) of the Act coupled with Section 6 of the Hindu Minority and Guardianship Act, 1956, suchguardian can complain to the court and can ask for an order under Section 25 of the Guardians and Wards Act.8. This Court has also given its anxious consideration to the welfare of the children in custody matter. ThisCourt is not oblivious of the salient observation of the Apex Court in Rosy Jacob v. Jacob A. Chakramakkal, Rohit Kumar Modwel vs Sudipa R. Modwel on 6 December, 1994Indian Kanoon - http://indiankanoon.org/doc/351984/3  which is quoted hereunder : ......The children are not mere chattels nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yieldedto the considerations of their welfare as human beings so that they may grow up in a normal balanced manneras a useful member of the society and the guardian court in case of a dispute between the mother and thefather, is expected to strike a just and proper balance between the requirements of welfare of the minorchildren and the rights of their respective parents over them. The Court has noted with caution the consideration over the conspectus of the welfare, namely, emotionalyearning of the children to be in company of their mother and the requirement of prosecution of studies in aparticular school. To strike a balance of the two considerations, this Court feels that when the children areadmittedly of such tender age, their emotional poise should not be disturbed by injuring their emotionalyearning and they should be reared up in the company of their mother for sometime more so that they are notlikely to become emotionally mal-adjusted. As such this Court while dealing with a revisional applicationarising from an order refusing to pass an ex-parte interim order does not intend to interfere with the same atthe present juncture. This Court once again repeats the proposition of law that orders passed under Section 25are always of temporary nature and they should be adjudicated after taking note of all considerations and theirbearing on the welfare of the said children.9. Accordingly, this Court directs that till the proceeding under Section 25 of the Guardians and Wards Act isdisposed of, the children should for the time being reside with their mother and prosecute their studies in thepresent school. However, this is by way of makeshift arrangement and the trial Court is directed to dispose of the proceeding for custody preferably within the middle of February 1995. Till that period the order of injunction restraining the Principal of La-Martinere School from striking off the name of the aforesaid twochildren will subsist and will continue till the court arrives at a fact finding decision on the welfare of thechildren and to solve the problem. By way of abundant caution this Court keeps alive the order of injunctionas this Court records its disapproval even on the part of the mother to expose the children from the hazard of the hurricane tour. This Court during the pendency of the proceeding under Section 25 before the trial Courtrestrains the mother-opposite party from removing the children from their normal place of study at Siliguriwithout prior leave of the trial Court and without intimating the local police station during their stay of  journey from Siliguri. During this period the petitioner-father will have right of access to the children and thatright is given to the father-petitioner so that he can counter-balance the emotional yearning of the said minorchildren. The opposite party present in Court has stated that from the end part of December, 1994 upto themiddle of January, 1995 she will be in Calcutta and during that period of her stay the father will have right tofrequent visit and access of the said children and the opposite party will keep informed the petitioner about herduration and period of stay in the city of Calcutta. This Court to strike a balance in between the counter-claimof the respective parent, without prejudice to the rights and contentions of the parties, directs thefather-petitioner to make payment every month at the rate of Rs. 1200/-consolidated for the upkeep and thewelfare of the said children for the present. This Court is desirous of taking note so that father is also preparedto undertake concomitant commitment of the claim of custody without any reservation. This Court does notintend to interfere with the order passed by the trial Court but it directs the trial Court to complete the entireproceeding under Section 25 within the deadline as it is touching the welfare of the children who are not onlyattractive but also assets to the future society if properly groomed and provided with amenities of life.Accordingly, the application for temporary order looses its importance. However, it is made clear that if anyserious situation developes concerning the said children during the pendency of the proceeding of custody inthe trial court, the parties will have liberty to mention this Court and this Court will exercise and intervene inthe aid of paramount consideration of the welfare of the said children. This Court retains its jurisdiction up tothe period till the matter is disposed of by the trial court to deal with any exigency of the situation.The revisional application is thus disposed of. There will be no order as to costs. Rohit Kumar Modwel vs Sudipa R. Modwel on 6 December, 1994Indian Kanoon - http://indiankanoon.org/doc/351984/4
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