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Sukant Bhattacharya vs Ishita Bhattacharya … on 20 December, 2017

THE HIGH COURT OF MADHYA PRADESH
FA-771-2016

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(SUKANT BHATTACHARYA Vs ISHITA BHATTACHARYA (CHAKRABORTY))

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Jabalpur, Dated : 20-12-2017

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Appellant Sukant Bhattacharya is present in person.
Shri Sankalp Kochar, learned counsel for the respondent.

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Heard on I.A. No.15621/2017, an application for grant of
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custody of minor child Sumedha Bhattacharya to the appellant. The
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appellant made following prayer in this application:

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“It is therefore, most humbly and respectfully prayed that
the appellant be kindly permitted to bring the child Sumedha to
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Jabalpur during upcoming winter vacation subject to the same
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conditions and directions as issued by this Hon’ble Court on
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24.03.2017, 15.05.2017 and 22.09.2017 to meet the ends of
justice. Any other relief, order or direction that this Hon’ble
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Court may deem just and proper in the given facts and
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circumstances of the case may also be passed in the interest of
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justice.”

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Appellant is the father of the girl. The marriage was solemnized
between the appellant and respondent on 01.06.2004 at Jabalpur. They
filed an application for divorce under Section 13-B of Hindu Marriage
Act. Earlier, a compromise was entered between the parties and the
same was filed before the trial Court. After presentation of the suit
under Section 13-B of Hindu Marriage Act, the Court recorded
statement and thereafter, granted six months’ time to the parties. After
lapse of six months’ time, the respondent-wife did not appear before
the Court. She submitted an application by post and pleaded the fact
that she was not willing to get a decree of divorce by mutual consent.
The present appellant filed an application under Section 151 of Code
of Civil Procedure. The trial Court rejected that application and also

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the suit filed under Section 13-B of Hindu Marriage Act on the ground
that the respondent had withdrawn her consent. Hence, the decree of

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divorce cannot be passed on the basis of mutual consent.

Against the aforesaid order dated 15.10.2016, the appellant filed
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this appeal. He also filed an application I.A. No.14757/2016 and
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prayed for an interim direction that provision of paragraph 6(vi) of
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compromise filed by the parties before the trial Court be enforced by
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way of interim relief. This Court vide order dated 13.12.2017
dismissed the application after observing that the compromise which
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was not acted and subsequently the respondent did not agree for
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divorce in terms of the compromise, certain clause of the compromise
cannot be ordered to be effected by way of interim relief.

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Now, the appellant has filed this application that he be given
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interim custody of his child Sumedha Bhattacharya during winter
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vacation. He pleaded that earlier also this Court directed interim
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custody of the child in his favour on 24.03.2017, 15.05.2017 and
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22.09.2017.

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The appellant appeared in person and argued extensively.
Learned counsel appearing on behalf of the respondent has
submitted that the appellant could not be granted interim custody of
the child because it would affect the future and well being of the child.
She is getting education at Kolkata. It is further submitted by the
learned counsel that as per Section 26 of Hindu Marriage Act, the
wishes of the child have not been recorded by the Court.

Earlier this Court vide interim order dated 11.11.2016 directed
the appellant to meet and communicate with the child-Sumedha
Bhattacharya. Thereafter, on 24.03.2017, this Court passed a detailed
order and permitted the appellant to spent session break and summer
vacation with Sumedha Bhattacharya and the respondent was directed

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to hand over the child to the appellant. Against the aforesaid order,
S.L.P. was filed, which was dismissed.

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When the matter came up for hearing before this Court on I.A.
No.14757/2016. This Court observed that the matter be placed before
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the same Bench and thereafter, the Division Bench passed order on
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interim relief. As such, the case was again listed before us. Now, the
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question is that whether the appellant be given interim custody of the
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child during winter vacation?

The appellant pleaded in the application that as per the
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settlement filed before the trial Court at the time of granting decree of
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divorce on mutual consent, it was agreed between the parties that child
be given on interim custody during vacations. We have noted in earlier
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order that the respondent has withdrawn from that settlement, hence,
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the decreed of divorce has not been passed. In such circumstances, this
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Court cannot enforce the clause of the settlement by way of interim
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direction in this proceeding which is not legally binding on the parties.
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Now, the next question is that whether the appellant be granted
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interim custody of child in his favour during winter vacation under
Section 26 of Hindu Marriage Act, 1955?

Section 26 of Hindu Marriage Act reads as under:

“26 Custody of children. – —In any proceeding under this
Act, the court may, from time to time, pass such interim orders
and make such provisions in the decree as it may deem just and
proper with respect to the custody, maintenance and education of
minor children, consistently with their wishes, wherever possible,
and may, after the decree, upon application by petition for the
purpose, make from time to time, all such orders and provisions
with respect to the custody, maintenance and education of such
children as might have been made by such decree or interim

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orders in case the proceeding for obtaining such decree were still
pending, and the court may also from time to time revoke,

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suspend or vary any such orders and provisions previously made:

[Provided that the application with respect to the
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maintenance and education of the minor children, pending the
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proceeding for obtaining such decree, shall, as far as possible, be
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disposed of within sixty days from the date of service of notice on
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the respondent.]”

In accordance Section 26 of Hindu Marriage Act, the Court can
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make order in regard to custody, maintenance and education of minor
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children consistently with their wishes.

The Hon’ble Apex Court in the case of Ashish Ranjan vs
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Anupma Tandon and another, (2010) 14 SCC 274 has considered in
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detail the provision of Section 26 of Hindu Marriage Act and the factor
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which have to be considered by the Court while determining the
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question that as to which parent the care and control of a child should
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be given. The Apex Court has clearly held that the paramount
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consideration remains the welfare and interest of the child and not the
rights of the parents under the statute. The Apex Court has considered
various judgements on this point. It reads as under:

“18. It is settled legal proposition that while
determining the question as to which parent the care and
control of a child should be given, the paramount
consideration remains the welfare and interest of the
child and not the rights of the parents under the statute.
Such an issue is required to be determined in the
background of the relevant facts and circumstances and
each case has to be decided on its own facts as the
application of doctrine of stare decisis remains irrelevant

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insofar as the factual aspects of the case are concerned.
While considering the welfare of the child, the “moral and

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ethical welfare of the child must also weigh with the
court as well as his physical well- being”. The child
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cannot be treated as a property or a commodity and,
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therefore, such issues have to be handled by the court
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with care and caution with love, affection and sentiments
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applying human touch to the problem. Though, the
provisions of the special statutes which govern the rights
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of the parents or guardians may be taken into
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consideration, there is nothing which can stand in the
way of the court exercising its parens patriae jurisdiction
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arising in such cases. (vide Gaurav Nagpal v. Sumedha
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Nagpal, AIR 2009 SC 557).

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19. Statutory provisions dealing with the custody of the
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child under any personal law cannot and must not supersede the
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paramount consideration as to what is conducive to the welfare of
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the minor. In fact, no statute on the subject, can ignore, eschew or
obliterate the vital factor of the welfare of the minor. (vide
Elizabeth Dinshaw v. Arvand M. Dinshaw, AIR 1987 SC 3;
Chandrakala Menon v. Vipin Menon, (1993) 2 SCC 6; Nil Ratan
Kundu Anr. v. Abhijit Kundu, (2008) 9 SCC 413; Shilpa
Aggarwal v. Aviral Mittal Anr. (2010) 1 SCC 591; and Athar
Hussain v. Syed Siraj Ahmed Anr., (2010) 2 SCC 654).”
Recently, the same principle has been reiterated by a three
Judges bench of the Hon’ble Apex Court in the case of Nithya Anand
Raghavan vs State (NCT of Delhi) and another, (2017) 8 SCC 454.

In the present case, the appellant wants custody of his child, who
is aged about 11 years, for a short period i.e. during winter vacation on

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the basis of compromise which was filed before the trial Court.
However, the compromise was not acted and the respondent had

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withdrawn herself from the compromise because she did not appear
before the trial Court and as per the finding of the trial Court, she
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communicated the Court that she does not want divorce on mutual
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consent. Thereafter, the suit filed by the appellant under Section 13-B
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of Hindu Marriage Act was withdrawn.

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The child is aged about 11 years and she is getting education at
Kolkata. The appellant wants to take custody of the child during winter
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vacation. In my opinion, due to change of custody of child without
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knowing her wishes would affect her emotionally. We do not know the
wishes of the child. Apart from this, the appellant filed a suit under
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Guardians and Wards Act for the custody of the child. In pursuance to
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the order of this Court, the suit was transferred to Kolkata. The
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appellant did not appear before the Court at Kolkata and as per the
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appellant that suit has been dismissed. In such circumstances, in our
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opinion, it would not be just and proper to hand over the child to the
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custody of the appellant during winter vacation. However, the
appellant is granted visiting rights with the child, as granted by this
Court vide order dated 11.11.2016. The appellant can meet the child
on the last Sunday of every month for a period of two hours and he
shall inform the date, time and place to the respondent for the aforesaid
purpose. The appellant shall make arrangements, so that appellant can
meet the child.

I.A. is disposed off accordingly.
Certified copy as per rules.

(S.K. GANGELE) (ANURAG SHRIVASTAVA)
JUDGE JUDGE

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Digitally signed by VINOD KUMAR TIWARI

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Date: 2017.12.21 15:12:59 +05’30’

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