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2015 DIGILAW 65 (ORI)

Swetalina Mohanty v. State of Odisha

2015-02-03

A.K.RATH, AMITAVA ROY

body2015
JUDGMENT : Amitava Roy, J. Whereas the order dated 30.9.2014 passed in W.P.(C) No. 12429 of 2014 instituted by the appellant herein is in assailment in W.A. No. 360 of 2014 the opposite party in the above writ petition seeks enforcement of this order in W.P.(C) No. 21758 of 2014. 2. As agreed to by the learned counsel for the parties, the appeal and W.P.(C) No. 21758 of 2014 have been analogously heard. 3. We have heard Mr. Gopal Kumar Mohanty, learned Senior Advocate for the appellant and Mr. Devashis Panda, learned counsel for the Respondent No. 4. 4. A brief outline of the relevant facts would be essential to comprehend the rival orientations. The appellant and the respondent No.4 are a married couple blessed with a male child, Swaymsidha. They are married on 5.7.2006 and set up their matrimonial home at Shastri Nagar, Bhubaneswar. Due to some differences between them, they have estranged themselves since 30.5.2014. The minor boy aged about 7/8 years is in the company of the mother who is presently residing in her parental house at Tulsipur, Cuttack. As the records reveal, cross criminal cases are pending based on rival F.I.Rs., the appellant-wife alleging mental and physical cruelty on account of dowry. At the time of appellant-wife's departure from the nuptial home, the minor son was prosecuting his studies in Standard-II in D.A.V. Public School, Chandrasekharpur, Bhubaneswar. After shifting to Cuttack; the appellant applied to the said School for issuing the transfer certificate of her minor son to facilitate his admission in D.A.V. Public School, Sector-6, C.D.A., Cuttack. The Respondent-husband however by his letter dated 21.6.2014 addressed to the Principal, D.A.V. Public School, Chandrasekharpur, Bhubaneswar registered his protest to the grant of such transfer certificate. Situated thus, the appellant approached this Court in W.P.(C) No. 12429 of 2014 seeking a direction to the institution to grant the transfer certificate applied for. 5. The Respondent No. 2, i.e. Principal, D.A.V. Public School, Chandrasekharpur, Bhubaneswar in his counter averred that though the appellant had deposited the application fees for taking the transfer certificate of her son and had collected the application form, the same had not been submitted thereafter. It was stated that to obtain a transfer certificate, not only the application therefor has to be applied in the supplied format on payment of requisite fee, it ought to be signed by both the parents. It was stated that to obtain a transfer certificate, not only the application therefor has to be applied in the supplied format on payment of requisite fee, it ought to be signed by both the parents. The letter of the respondent-husband requesting against the issuance of the transfer certificate was also referred to. 6. The Respondent No. 4, the father of the minor boy in his counter in substance registered his serious objection to the proposed transfer of the child from D.A.V. Public School, Chandrasekharpur, Bhubaneswar and pleaded in particular that not only the said school was a premier institution of the State, the boy had been performing well in studies and was involved in extra-curricular activities at Bhubaneswar under his vigilant, care and support. While accusing the appellant of leaving the matrimonial home on trivial issues and claiming that all endeavors of reconciliation by him have failed for her adamant attitude, the answering respondent stoutly denied the allegation of mental and physical torture on account of dowry. He also averred that the appellant's remonstrance bearing on the non-issuance of transfer certificate was patently untenable as no application in the required format containing the signature of the parents had been submitted to the school for such certificate. Further, there was no material on record to show that the minor boy can presently be admitted against a vacant seat at D.A.V. Public School, Sector-6, C.D.A., Cuttack. The prayer for the direction for issuance of the transfer certificate was thus repudiated to be misconceived and pre-matured. 7. By an additional affidavit, this opposite party undertook to make arrangement for a separate accommodation for the appellant and the minor son at Bhubaneswar so as to enable the latter to continue his studies at D.A.V. Public School, Chandrasekharpur, Bhubaneswar. He also assured not to threaten or coerce the appellant in any manner during her stay at Bhubaneswar with the minor boy as proposed. 8. Learned Single Judge by the order impugned in the appeal held that the primary ground for the appellant's departure from Bhubaneswar was allegedly the cruel attitude of the husband. It was recorded that the appellant was unemployed and unable to meet the day to day expenditure of the minor child. 8. Learned Single Judge by the order impugned in the appeal held that the primary ground for the appellant's departure from Bhubaneswar was allegedly the cruel attitude of the husband. It was recorded that the appellant was unemployed and unable to meet the day to day expenditure of the minor child. The undertaking of the opposite party-husband to meet the expenditure towards food and lodging of the appellant and her son and for the latter's studies at Bhubaneswar was taken note of. The opposite party-husband's undertaking not to threaten and coerce the appellant in any manner during her stay at Bhubaneswar with the minor son also did weigh with the learned Single Judge. It was thus concluded that it was for the welfare of the child that he should continue his studies at D.A.V. Public School, Chandrasekharpur, Bhubaneswar. The parents were directed to send the child to the school forthwith. The opposite party-husband was directed further that apart from meeting all the expenditure towards rent etc. for the accommodation of the wife and the minor child, he would continue to pay a sum of Rs. 7500/- per month for their maintenance. The authorities of the DAV Public School, Charidrasekharpur, Bhubaneswar were directed to allow the father to meet the son in presence of a responsible teacher at least once in a week preferably on a Friday within the premises of the school. 9. As adverted to hereinabove, the appellant-wife being aggrieved is in appeal. The opposite party-husband on the other hand seeks enforcement of this order. 10. Learned counsel for the appellant has argued that in view of her (appellant) traumatic experiences of abuse and assault in her matrimonial home, her stay at Bhubaneswar along with her minor child even in a separate accommodation arranged by the opposite party-husband, would be hazardously risky and thus they ought not to be compelled to reside there at Bhubaneswar. 10. Learned counsel for the appellant has argued that in view of her (appellant) traumatic experiences of abuse and assault in her matrimonial home, her stay at Bhubaneswar along with her minor child even in a separate accommodation arranged by the opposite party-husband, would be hazardously risky and thus they ought not to be compelled to reside there at Bhubaneswar. According to him, the sister-in-law of the appellant being a teacher in the DAV Public School, Chandrasekharpur, Bhubaneswar and not in good terms with her, there was a possibility of the minor boy being harmed learned counsel has urged that the appellant and the child relatively would be much secured and comfortable at Cuttack and as the D.A.V. Public School, Sector-6, C.D.A., Cuttack is equally good, a direction to the D.A.V. Public School, Chandrasekharpur, Bhubaneswar ought to be made to issue transfer certificate as prayed for in the overall interest of the child. 11. As against this Mr. Panda, learned counsel for the respondent No.4 has argued that the apprehension of the appellant is wholly unfounded and that it would be in the welfare of the minor boy to allow him to continue his studies in D.A.V. Public School, Chandrasekharpur, Bhubaneswar learned counsel has insisted that in view of the undertaking given to the Court by respondent-husband, there is no justifiable reason to interfere with the impugned order and instead a direction ought to be issued for compliance thereof forthwith. 12. Having heard the learned counsel for the parties and on a consideration of the pleaded facts and documents on record, we, at the first instance decided to interact with the parents and the minor child to ascertain their view points on the issue of shifting of the situs of studies of the child. Accordingly, they being present, we deliberated with them in camera. 13. Noticeably, as on date, none of the spouses has initiated any proceeding either for dissolution of the marriage or for restitution of conjugal rights. From the records, as well as the interaction with them, it transpires that a couple of criminal proceedings initiated by the appellant alleging cruelty and domestic violence against the opposite party-husband and others are presently pending. 14. Be that as it may, the appellant reiterated before us the allegation of abuse and assault and exhibited her obdurate unwillingness against restoration of her matrimonial home. 14. Be that as it may, the appellant reiterated before us the allegation of abuse and assault and exhibited her obdurate unwillingness against restoration of her matrimonial home. She also expressed serious apprehension against her safety and security along with her son if made to stay in Bhubaneswar even if in a separate accommodation. She also disclosed that she was a graduate and had also applied for assignments and was expecting a job shortly. 15. The opposite party-husband on being queried by us did disclose that he had a monthly income of Rs. 20,000/- and was prepared to take back his wife and son. He denied the allegation of abuse and torture and instead claimed to have made endeavours for reconciliation which failed for the rigid attitude of the appellant. While admitting that the appellant and the minor child were away from him from May, 2014 and that since then he had not taken any step to meet them, he insisted .it would be in the overall well being of the child, if he continued his studies at D.A.V. Public School, Chandrasekharpur, Bhubaneswar and pursued his extra curricular activities there. He reiterated his preparedness to provide for food, separate lodging of the appellant at Bhubaneswar at his cost and also to meet the expenditure for the studies and extra curricular activities of the child. 16. While talking to the minor boy in absence of the parents, we found him to be a smart and bright child. We were told by the mother that he is good at studies. His disclosures to us demonstrated his emphatic inclination to stay and study at Cuttack: The tender boy of seven years noticeably wept while narrating his unhappy experiences at Bhubaneswar. 17. Having regard to the fact that the issue seeking adjudication has to be approached bearing in mind the interest of the child, we are of the opinion, by balancing all relevant factors, that he ought to be permitted to pursue his studies at Cuttack. Noticeably, he has stopped going to school since 30.5.2014 being caught in the cross-fire of hostilities of his parents. There is nothing overwhelming on records to demonstrate that the academic prospects of the child would be jeopardized if he is allowed to study in the proposed school i.e. DAV Public School, Sector-6, C.D.A., Cuttack. Noticeably, he has stopped going to school since 30.5.2014 being caught in the cross-fire of hostilities of his parents. There is nothing overwhelming on records to demonstrate that the academic prospects of the child would be jeopardized if he is allowed to study in the proposed school i.e. DAV Public School, Sector-6, C.D.A., Cuttack. Having regard to the background in which the appellant and the minor child had shifted from the matrimonial home, the apprehension about their safety and security at Bhubaneswar, even if they stay in a separate accommodation cannot be lightly brushed aside to be a myth. In course of our interaction with the child, it did not appear to us that he had been tutored and instead was spontaneous in his replies and expression of his mind. He seemed to be apparently comfortable in the company of his mother and her relations at Cuttack. Needless to say the respondent as the husband and father of the appellant's son is obliged in law to maintain them to ensure a dignified life. Additionally as a father, duty is cast on him to secure his son's studies and rear him in a congenial atmosphere. The appellant is a graduate and is found to be keen to take up some assignment/job to be financially independent. 18. On a careful evaluation of the above factors and bearing in mind that the arrangement for the minor's studies ought to be guided by the paramount consideration of his well being, we are of the opinion that his welfare would be best addressed, if he is allowed to take admission in D.A.V. Public School, Sector-6, C.D.A., Cuttack and pursue his studies and extra curricular activities at Cuttack. 19. We, therefore, hereby direct the parents to complete the necessary formalities at the earliest for issuance of transfer certificate by the DAV Public School, Chandrasekharpur, Bhubaneswar. Needless to say that once the required formalities are completed, the D.A.V. Public School, Chandrasekharpur, Bhubaneswar would issue transfer certificate in favour of the boy whereafter immediate steps would be taken for his admission in D.A.V. Public School, Sector-6, C.D.A., Cuttack. The exercise should be completed latest within a fortnight herefrom. Needless to say that once the required formalities are completed, the D.A.V. Public School, Chandrasekharpur, Bhubaneswar would issue transfer certificate in favour of the boy whereafter immediate steps would be taken for his admission in D.A.V. Public School, Sector-6, C.D.A., Cuttack. The exercise should be completed latest within a fortnight herefrom. The respondent-husband/father would bear the necessary expenditure of the process of issuance of the transfer certificate and continue to pay Rs.7500/- per month as maintenance until further order The parties would also take necessary steps in accordance with law for amicable disposal of the pending criminal cases. 20. We make clear that it this arrangement has been made bearing in mind only the aspect of the welfare of the child involved and this would not have any bearing whatsoever vis-a-vis the right of his custody. However, as in terms of the order, the minor son would remain with the appellant, we hereby grant the opposite party-father visitation rights to enable him to meet his son on prior information and arrangement to be made to this effect on the basis of mutual concurrence of the parties. 21. The appeal is thus allowed. Consequently, the W.P.(C) No. 21758 of 2014 is dismissed. I agree. Ordered accordingly.