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Indranil Mukherjee vs Smt. Jayeeta Mukherjee (Nee … on 16 May, 2018

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

BEFORE: HON’BLE MR. JUSTICE HARISH TANDON

C.O. 790 OF 2017

INDRANIL MUKHERJEE
VS
SMT. JAYEETA MUKHERJEE (NEE BHATTACHARJEE)

Mr. Anindya Lahiri, Adv.

Mr. Indranil Mukherjee (In Person)
… for the Petitioner

Mr. Amarnath Agarwal, Adv.

…. For the Opposite Party.

Judgment on: 16th May, 2018.

The Court:

This revisional application is directed against Order No. 14 dated 22nd

February, 2017 passed by the learned Additional District Judge, 1st Court,

Barasat in Misc. Case No. 220 of 2016 by which an application seeking

direction upon the opposite party not to create any interference in performing

the sacred thread ceremony (Upanayan) of the minor son by the petitioner is

rejected as premature.

Admittedly, the parties to the instant proceeding are married and

registered their marriage under the Hindu Marriage Act, 1955. It is also not in

dispute that from the said wedlock one male child and a female child are born

on 4th February, 2005 and 6th February, 2009 respectively. By passage of time

the relationship between the parties grew bitter and the record would reveal

that the parties have initiated several proceedings both civil and criminal

asserting their respective rights. The order is passed in a proceeding which
originated on the basis of an application taken out by the petitioner under

Guardians and Wards Act for custody of the minor children. It is also not in

dispute that an application for visitation as and by way of an interim measure

was also taken out in the said proceeding and has been disposed of by the

Court below which is also impugned in another revisional application being

C.O. 3229 of 2017.

The application which leads to passing the impugned order contains the

statement that since the parties are governed by the Hindu Religion, it is the

duty of the father to perform the sacred thread ceremony of the son before he

attains the age of 13 years. It has been stated in the said petition that as per

Shastrik Rules the sacred thread ceremony must be performed before the son

completes the age of 13 years. The reliance is placed upon an opinion of one of

the scholars of the Hindu customs and the same is annexed to the said

application. It is stated in the said application that the petitioner being the

father is duty bound to organize the sacred thread ceremony and further

possesses the right that of an Acharya of the minor child.

The wife in turn took a stand in the written objection submitted to the

said application that in the garb of performing the sacred thread ceremony the

petitioner intended to achieve something else and if the petitioner so desires

may negotiate the disputes and the rival claims of the parties in a proper

manner.

At the very outset, this Court must record that there is no express and /

or specific denial of the statements made in the said application by the

opposite party. The sum and substance of the statements made in the written

objection or that such application is filed with oblique motive and evil desire on

such superficial facts and therefore there is no need to interfere in the carriage

of the proceeding.

The learned Judge in the Court below rejected the said application on the

ground that it is premature and the reasons recorded in support thereof are

succinctly jotted down as under:-

“Admittedly, the minor son of the petitioner is now living under the care and
custody of his mother. Usually the Upanayan Ceremony is organized in any Hindu family
with the consultation of the parents and relatives of the said minor son and it cannot be
made only at the whims and will of either of the parents. In the instant case, it appears
that the opposite party being the mother is not willing to arrange or organize any
upanayan ceremony of his minor son. Therefore, how is it possible for the petitioner to
organize the upanayan ceremony of his son without having any consultation and
negotiation with the mother of the minor son. Therefore, the organizing the Upanayan
Ceremony of the minor son, it is the duty of the petitioner being the father of the minor son
to consult the matter with his wife and the relatives. Prior to that any attempt is made by
the petitioner appears to be meaningless.”

On a meaningful reading of the above quoted observation it is manifest

that the Trial Court proceeded to reject the said application as the opposite

party being the mother is not willing to arrange or organize an Upanayan

ceremony of his minor son and therefore it is not possible for the petitioner to

organize such ceremony without having any consultation and negotiation with

the mother. What can be seen from the aforesaid observation that the Court
wanted that before the said application is finally decided by the Court of Law, it

is imperative on the part of the petitioner to first consult and negotiate with the

mother for performance of such ceremony.

Though this Court does not approve the reasons provided for rejection of

the said application for the simple reason that once the parties are at

loggerhead, the negotiation and / or consultation for performance of such

ceremony would not yield any fruitful result. If one of the parties have

approached the Court for direction / order it is the duty of the Court to decide

the same on legal parameters. Initially, this Court thought that the impugned

order deserves interference but considering that the primary object is to see the

welfare of the child, this Court passed various orders on visitation of the father

with the minor children and kept the revisional application alive. However, the

parties insisted that the matter should be disposed of on merit.

It is submitted on behalf of the opposite party that the said application

has become redundant and / or infructuous for the simple reason that the

minor male child has crossed the age of 13 years. Such fact is not disputed. It

is really a matter of concern that the warring parents are litigating to satisfy

their egos without sensing that where the welfare of their children lies. It is a

common experience that when the spouses fall apart, the children are

projected as pawn and used as a tool against each other. The worst sufferer in

such litigation are the children. This Court does not delve to go into the nitty

gritty and genuinity of the allegations made in the written objection that such
application is taken out by the petitioner with oblique motive yet a sense of

responsibility is percolated through the said application to perform the rituals

and the customary rights despite having differences between themselves. It is a

collective obligation and responsibility of all the stakeholders including the

parents to act and behave in such a manner which is conducive, congenial and

advances to the welfare of the children.

In course of the hearing, it is submitted by the petitioner that he is

agreeable to bear all expenditures for performance of the ceremony. It is further

submitted that even if the opposite party is not agreeing that the petitioner

should perform such ceremony as natural father, he is agreeable to perform

such ceremony as ‘Acharya father’ and further agreed to perform such

ceremony at the residence of the wife or the place which she thinks fit and

suitable for such ceremony.

The petitioner went further when a suggestion was made by the wife that

such ceremony can be performed by anybody as ‘Acharya father’ and agrees to

the same with the condition that he should also be allowed to attain the

ceremony.

However, this Court cannot ignore the fact that it was all along a specific

stand of the petitioner that the sacred thread ceremony must be performed

before the male child attains the age of 13 years and since the child has

crossed such age, in my opinion, the application has become redundant and /
or infructuous. This Court feels to record that the sacred thread ceremony may

be performed at a later period of time but with certain conditions.

This Court, therefore, does not find that it is a fit case where the

application filed by the petitioner deserves to allowed in view of the changed

circumstances.

The revisional application is thus disposed of.

However, there shall be no order as to costs.

(HARISH TANDON, J.)

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