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1995 DIGILAW 146 (DEL)

NAWROZ SALAM v. SUKANYA ROY

1995-02-09

DALVEER BHANDARI

body1995
Dalveer Bhandari ( 1 ) THIS revision petition has been filed by thepetitioner under Section 115 of the Code of Civil Procedure for quashing andsting aside the order dated 9th January, 1995 passed bed by the learned Additionaldistrict Judge. ( 2 ) A petition for grant of divorce by mutual consent was filed under Sections28 (1) and 28 (2) of the Special Marriage Act, and was disposed of by order dated 4/09/1991. The learned Additional District Judge granted divorce bymutual consent to the parties. The parties to the above petition have settled all theirdisputes and claims on certain terms. ( 3 ) IT has also been agreed between the parties that the minor child Ishan Roysalam shall remain under the care and custody Dr. Ms. Sukanya Roy (respondentin this petition ). It was agreed between the parties that the petitioner No. l shallhave the right to visit and take the minor child with him twice a month on alternatesaturdays. ( 4 ) IT was agreed that the minor child would accompany the father on the 2ndand 4th Saturday of the month in the morning and shall be restored to therespondent the following morning i. e. on Sunday morning after the 2nd Saturdayand by the evening of the 4th Saturday, on the same day. The petitioner No. l maytake the minor child with him during the day time or any one additional day of themonth in consultation with the respondent on a day which was convenient to boththe respondent and the child. ( 5 ) THE petitioner moved an application under Section 151 Civil Procedure Code for modification of the order passed by the learned Additional District Judge in the mutual consentpetition. ( 6 ) THE petitioner contended that he was working with Pertech Computers (P)Ltd. as General Manager. The employer had decided to send the petitioner to theunited States of America, on posting in marketing operations in Computers for aperiod of 3 to 5 years. Such a posting was essential for his career advancement. Itmay be pertinent to mention that the petitioner after obtaining the decree of divorceby mutual consent has again married. Similarly, the respondent has also marriedan Indian, settled in Australia in September, 1994. Therefore, such change incircumstances will make it practically impossible for the petitioner to carry on withthe terms and conditions as mutually agreed and envisaged. Itmay be pertinent to mention that the petitioner after obtaining the decree of divorceby mutual consent has again married. Similarly, the respondent has also marriedan Indian, settled in Australia in September, 1994. Therefore, such change incircumstances will make it practically impossible for the petitioner to carry on withthe terms and conditions as mutually agreed and envisaged. ( 7 ) THE petitioner sought indulgence of the learned Additional District Judge toamend the terms and conditions with regard to his visiting and meeting rights tohis minor child Ishan Roy Salam. ( 8 ) THE petitioner sought that he may be allowed to keep and meet his minorchild for 24 days at a stretch every year during the long vacation. The learnedadditional District Judge while amending the earlier order mentioned that in casethe father is desirous of meeting his child, he will be at liberty to visit him aftergiving prior information in writing to the respondent in Australia in terms of themutual agreement between the parties which formed a part of the decree of divorcedated 4. 9. 91. The Court also mentioned that the Australian High Commission andother concerned authorities will be at liberty to issue visa for the child forthwith asper law, without insisting for no objection of the father of the child. ( 9 ) 1 have heard the learned Counsel for the parties at length. Apart from theissue of deciding the visiting rights of the petitioner, another issue which is inherentin this case is of paramount importance and that is the welfare and interest of thisminor child Ishan Roy Salam, born out of the wedlock of the petitioner and therespondent, particularly, because both the petitioner and the respondent have re-married and are likely to settle in the United States and Australia respectively innear future at least for a few years. ( 10 ) IT is clearly mentioned by the petitioner that it would not be possible forhim to visit Australia to see the child. He prayed that he may be allowed to spendtime with the child as and when the child comes to India along with the respondentor otherwise. The learned Counsel appearing for the respondent on instructionscategorically mentioned that the respondent would have no objection if thepetitioner spends time with the said child. He prayed that he may be allowed to spendtime with the child as and when the child comes to India along with the respondentor otherwise. The learned Counsel appearing for the respondent on instructionscategorically mentioned that the respondent would have no objection if thepetitioner spends time with the said child. ( 11 ) IN order to ensure the rights of the petitioner, it is directed that,a. the petitioner would be provided free access to the child by the respon-dent;b. the respondent undertakes to inform the petitioner at least four weeksbefore her every visit to India by cable, telephone and/or letter so thatthe petitioner can also organize his programme accordingly and canmake it convenient to come to India to spend the time with the childishan Roy Salam. ( 12 ) THE learned Counsel for the parties give undertaking to this Court that thespirit of this order shall be carried out in the true sense and there shall be no breachof the undertaking. In case there is any breach of the undertaking, the parties wouldbe at liberty to move this Court for appropriate directions. ( 13 ) THE other important aspect which arises in this case is the serious concernand interest of the Court in the well being and future welfare of the child Ishanparticularly because both his parents after obtaining a decree of divorce by mutualconsent have re-married. After the passage of time, perhaps, they may not have thesame interest in the welfare of Ishan. The welfare and interest of Ishan is theparamount consideration of the Court. To protect the interest of Ishan, on Court ssuggestion, the petitioner has readily deposited Rs. 1 lakh with the Registrar of thiscourt and similarly, the respondent has willingly deposited Rs. 75000. 00 with theregistrar of this Court. This amount shall be utilised for the welfare of Ishan. ( 14 ) THE learned Counsel for the respondent submitted that her client wouldproperly look after the interest of Ishan and similarly the petitioner has also given4 an undertaking that he shall continue to pay the mainteriance of Rs. 500. 00 regularlyas directed by the Trial Court and the said amount would be sent at the address ofthe respondent either in advance or on month to month basis. Therefore, thereseems to be no immediate need of money for the child. 500. 00 regularlyas directed by the Trial Court and the said amount would be sent at the address ofthe respondent either in advance or on month to month basis. Therefore, thereseems to be no immediate need of money for the child. But in order to protect thefuture interest of the child, I direct-the learned Registrar of this Court to initiallydeposit this amount for a period of 5 years with a nationalised bank and after expiryof the said period of 5 years, renew the deposits of total amount for another 5 yearsand this will continue until the child Ishan Roy Salam attains majority. Ordinarily,this amount shall not be permitted to be utilised till Ishan attain majority. However,in case of any grave exigency, Ishan shall be at liberty to move the Court forappropriate directions. ( 15 ) AFTER Ishan attains majority, the Court would pass the appropriate ordersregarding the manner of disbursing or investing the amount in his interest andwelfare. The learned Registrar is directed to send the information to this Court thatthe amount which has been deposited with him has been invested in a nationalisedbank within 4 weeks from today. ( 16 ) THE respondent is present in Court and gives an undertaking to the Courtthat the child s name as Ishan Roy Salam shall be retained all over, including theschool and in the passport. ( 17 ) THE petitioner who is present in Court undertakes to give statutorydeclaration according to the rules of the Australian High Commission, indicatinghis no objection if the child Ishan is taken to Australia on grant of Australian Visawithin one week from today. ( 18 ) I would like to place on record my appreciation for the assistance of thecounsel and of the local Commissioner in finding a suitable solution of a ratherintricate human problem. ( 19 ) THE order dated 7. 1. 95 is modified to the extent that the parties would notrequire any prior permission of the Court for going abroad. ( 20 ) NO further directions are necessary. The petition is accordingly disposedof in terms of the aforesaid directions.