Bimlendu Kumar Chatterjee Vs. Dipa Chatterjee & Ors.
EmailAppeal: Civil Appeal No. 6501 of 2001
(Arising out of SLP (Civil) No. 1447 of 2001)
(From the Judgment and Order dated 6.11.2000 of the Patna High Court in L.P.A No. 358 of 1997(R))
(Arising out of SLP (Civil) No. 1447 of 2001)
(From the Judgment and Order dated 6.11.2000 of the Patna High Court in L.P.A No. 358 of 1997(R))
Petitioner: Bimlendu Kumar Chatterjee
Respondent: Dipa Chatterjee & Ors.
Apeal: Civil Appeal No. 6501 of 2001
(Arising out of SLP (Civil) No. 1447 of 2001)
(From the Judgment and Order dated 6.11.2000 of the Patna High Court in L.P.A No. 358 of 1997(R))
(Arising out of SLP (Civil) No. 1447 of 2001)
(From the Judgment and Order dated 6.11.2000 of the Patna High Court in L.P.A No. 358 of 1997(R))
Judges: D.P. MOHAPATRA & SHIVARAJ V. PATIL, JJ.
Date of Judgment: Sep 19, 2001
Appearances:
In-person for Appellant.
Mr. Bikas Kar Gupta and Mr. Avijit Bhattacharjee, Advocates for the Respondents.
Head Note:
GUARDIANS AND WARDS/PRACTICE AND PROCEDURE
Guardians and Wards Act, 1890
Section 12 – Custody of child – Division bench in LPA directing matter to rest on previous orders dated 25.11.97 – Said order also passed by division bench in same LPA reiterating the right of father to see his daughter once in a week – Again in contempt proceedings same liberty given for specified day and time – LPA decided on 4.5.2000 and orders of single bench directing custody with mother and liberty to father to go and see the child, set aside. Held that orders under challenge (dated 6.11.2000) is unsustainable as it was passed overlooking the orders dated 25.11.97 which was interim and not subsisting after disposal of appeal vide judgment dated 4.5.2000. Liberty given to father to move the court where matter was pending for appropriate interim arrangement. (Paras 8, 10)
JUDGEMENT:
D.P. Mohapatra, J.
1. Leave granted.
2. We have heard the petitioner – Shri Bimlendu Kumar Chatterjee, who appeared in person and learned counsel appearing for the respondents.
3. The appellant is the husband of respondent no. 1 – Smt. Dipa Chatterjee. The dispute raised in the case relates to the right of the appellant to have custody or at least a right to visit regularly his daughter who is now residing with respondent no.1.
4. This appeal is directed against the order passed by a division bench of the Ranchi bench of Patna High Court on 6th November, 2000 in LPA 358/97 (R) titled Bimlendu Kumar Chatterjee v. Smt. Dipa Chatterjee & Anr. Relevant portion of the order reads thus :
“The court heard this matter for some time. The court has also seen the record of the present letters patent appeal. The court is also conscious of the order which was passed by a bench pre-sided over by hon’ble Mr. justice Narayan Roy and hon’ble Mr. justice M.Y. Eqbal on 25th November, 1997. In short, the court will not permit the child to become a shuttle-cock. The matter must rest on the order as recorded on 25th November, 97.
Thus, the application filed on 16th August, 2000 is consigned.”
From the above order it is clear that the division bench has reiterated the arrangement made in the order dated 25th November, 1997 regarding custody of the child.
5. In the order dated 25th November, 1997 in LPA No. 358/1997 (R) a division bench of the High Court disposed of the petition filed by the appellant herein praying to the court to ascertain from the respondent no.1 herein whether she was agreeable to the desire expressed by him for an amicable settlement of the matter. The division bench disposed of the said petition with the follow-ing order :
“We find that the letters patent appeal itself has been filed for giving custody of the girl child to the appellant. Since the matter is subjudice in this court, in our view, it would not be appropriate to pass any direction giving the female child in custody of the appellant even temporarily. A liberty has already been given to the appellant by the order impugned to see his daughter at least once in a week and in view of the direction the appellant may see his daughter once in a week and the respondent no.1 must make her daughter available to the appellant in terms of the order impugned.
For the reasons aforementioned we refrain ourselves from passing any further order in the matter.”
Thereafter in the order passed on 10th August, 1998 in MJC No. 783 of 1997 (R) filed in LPA No. 358/97 (R) for initiation of a con-tempt proceeding against respondent no.1 for violating the order dated 25th November, 1997 of the court, a division bench passed the following order :
“The petitioner will have the liberty to visit the house of opp. party no.1 on every Sunday in the afternoon between 2.00 p.m. and 4.00 p.m. and if he does so, the opp. party no.1 will make arrangement to enable him to meet his daughter and allow him to remain with her for a reasonable time.
This order is being passed so as to avoid future contro-versy.”
6. LPA No. 358/97 (R) was decided by the judgment rendered by a division bench on 4th May, 2000. The appeal was allowed and that part of the order by which the learned single judge had directed that the child will remain with the mother with liberty to the father to go and see the child at least once a week, was set aside.
7. Thereafter, it appears that the respondent no.1 having failed to restore custody of the child to him, the appellant filed an application before the High Court seeking implementation of the order of the family court, Dhanbad giving custody of the child to him. Considering the said application, another division bench passed the order dated 6th November, 2000, as quoted earlier. The said order is under challenge in this appeal.
8. As noted earlier, in the order under challenge, the High Court reiterated the order passed on 25th November, 1997 in LPA No. 358/97 (R) overlooking the position that the said order which was an interim order passed in the appeal was not subsisting after disposal of the appeal by the judgment dated 4th May, 2000. Further, the division bench had also overlooked the position that the LPA itself having been disposed of, no further order reviving the interim order passed during the pendency of the said appeal could be passed in the disposed of case. In the circumstances, the order under challenge is clearly unsustainable and has to be set aside. The learned counsel appearing for the respondents fairly accepted the position that the impugned order is wholly unsupportable.
9. Then the question arises what will be an appropriate order to be passed on the facts and circumstances of the case. The ap-pellant, who is the father of the child, submitted before us that after long years of litigation, he has not yet got even a right to see his child for some time at regular intervals. The grievance of the appellant cannot be brushed aside. A humanitari-an approach is necessary for solving the problem.
10. In the result, the appeal is allowed. The order dated 6th November, 2000 in LPA No. 358/97 (R) is set aside. Leave is granted to the appellant to file an application for appropriate interim arrangement for getting custody of his child or for making an arrangement enabling him to see his child at regular intervals before the court in which the suit/appeal stated to have been filed by him is pending. If such an application is filed, the court will dispose of the same as expeditiously as possible. There will be no order as to costs.
1. Leave granted.
2. We have heard the petitioner – Shri Bimlendu Kumar Chatterjee, who appeared in person and learned counsel appearing for the respondents.
3. The appellant is the husband of respondent no. 1 – Smt. Dipa Chatterjee. The dispute raised in the case relates to the right of the appellant to have custody or at least a right to visit regularly his daughter who is now residing with respondent no.1.
4. This appeal is directed against the order passed by a division bench of the Ranchi bench of Patna High Court on 6th November, 2000 in LPA 358/97 (R) titled Bimlendu Kumar Chatterjee v. Smt. Dipa Chatterjee & Anr. Relevant portion of the order reads thus :
“The court heard this matter for some time. The court has also seen the record of the present letters patent appeal. The court is also conscious of the order which was passed by a bench pre-sided over by hon’ble Mr. justice Narayan Roy and hon’ble Mr. justice M.Y. Eqbal on 25th November, 1997. In short, the court will not permit the child to become a shuttle-cock. The matter must rest on the order as recorded on 25th November, 97.
Thus, the application filed on 16th August, 2000 is consigned.”
From the above order it is clear that the division bench has reiterated the arrangement made in the order dated 25th November, 1997 regarding custody of the child.
5. In the order dated 25th November, 1997 in LPA No. 358/1997 (R) a division bench of the High Court disposed of the petition filed by the appellant herein praying to the court to ascertain from the respondent no.1 herein whether she was agreeable to the desire expressed by him for an amicable settlement of the matter. The division bench disposed of the said petition with the follow-ing order :
“We find that the letters patent appeal itself has been filed for giving custody of the girl child to the appellant. Since the matter is subjudice in this court, in our view, it would not be appropriate to pass any direction giving the female child in custody of the appellant even temporarily. A liberty has already been given to the appellant by the order impugned to see his daughter at least once in a week and in view of the direction the appellant may see his daughter once in a week and the respondent no.1 must make her daughter available to the appellant in terms of the order impugned.
For the reasons aforementioned we refrain ourselves from passing any further order in the matter.”
Thereafter in the order passed on 10th August, 1998 in MJC No. 783 of 1997 (R) filed in LPA No. 358/97 (R) for initiation of a con-tempt proceeding against respondent no.1 for violating the order dated 25th November, 1997 of the court, a division bench passed the following order :
“The petitioner will have the liberty to visit the house of opp. party no.1 on every Sunday in the afternoon between 2.00 p.m. and 4.00 p.m. and if he does so, the opp. party no.1 will make arrangement to enable him to meet his daughter and allow him to remain with her for a reasonable time.
This order is being passed so as to avoid future contro-versy.”
6. LPA No. 358/97 (R) was decided by the judgment rendered by a division bench on 4th May, 2000. The appeal was allowed and that part of the order by which the learned single judge had directed that the child will remain with the mother with liberty to the father to go and see the child at least once a week, was set aside.
7. Thereafter, it appears that the respondent no.1 having failed to restore custody of the child to him, the appellant filed an application before the High Court seeking implementation of the order of the family court, Dhanbad giving custody of the child to him. Considering the said application, another division bench passed the order dated 6th November, 2000, as quoted earlier. The said order is under challenge in this appeal.
8. As noted earlier, in the order under challenge, the High Court reiterated the order passed on 25th November, 1997 in LPA No. 358/97 (R) overlooking the position that the said order which was an interim order passed in the appeal was not subsisting after disposal of the appeal by the judgment dated 4th May, 2000. Further, the division bench had also overlooked the position that the LPA itself having been disposed of, no further order reviving the interim order passed during the pendency of the said appeal could be passed in the disposed of case. In the circumstances, the order under challenge is clearly unsustainable and has to be set aside. The learned counsel appearing for the respondents fairly accepted the position that the impugned order is wholly unsupportable.
9. Then the question arises what will be an appropriate order to be passed on the facts and circumstances of the case. The ap-pellant, who is the father of the child, submitted before us that after long years of litigation, he has not yet got even a right to see his child for some time at regular intervals. The grievance of the appellant cannot be brushed aside. A humanitari-an approach is necessary for solving the problem.
10. In the result, the appeal is allowed. The order dated 6th November, 2000 in LPA No. 358/97 (R) is set aside. Leave is granted to the appellant to file an application for appropriate interim arrangement for getting custody of his child or for making an arrangement enabling him to see his child at regular intervals before the court in which the suit/appeal stated to have been filed by him is pending. If such an application is filed, the court will dispose of the same as expeditiously as possible. There will be no order as to costs.
