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2015 DIGILAW 780 (CAL)

Sajeda Khatun v. Md. Abdul Kadir

2015-09-16

SIDDHARTHA CHATTOPADHYAY

body2015
JUDGMENT : Siddhartha Chattopadhyay, J. 1. This revisional application emanates from the order No. 18, dated 18.09.2013 passed by the Learned District Judge, Darjeeling. By the impugned order the Learned District Judge held "the order passed by this Court seems to be without jurisdiction and this being so, the said order cannot be executed by this Court." 2. In the interest of effective adjudication factual matrix needs to be restated. The petitioner mother has filed an application under Section 25 of Guardians and Wards Act 1890 praying for custody of her three children, who are residing with their father. The opposite party husband appeared in that case by filing written objection. But ultimately he did not pursue the said litigation and as a result an ex-parte order was obtained by the present petitioner. Since the petitioner is a Mohammedan lady so the Learned Court below held that the parties to the case being muslims they would certainly be governed under Muslim law. He has categorically mentioned that a Muslim mother is entitled to the custody of her daughters until the daughters attain puberty and she is also entitled to the custody of the son until the son attains the age of 7 years. In the case in hand the daughters are yet to attain the age of puberty and the son is only 4 years old and accordingly the Learned Court below had passed an order in favour of the petitioner. In the ordering portion, the Learned Court below held "that they suit be and the same is decreed ex-parte against the opposite party, but without costs. The petitioner/mother do get a decree for the custody of her children viz. (1) Sultana Afri, (2) Suhana Farin and (3) Mohammad Sohail against the opposite party. The Opposite party/father is directed to deliver the custody of those children to the petitioner within a month of this order failing which the petitioner is at liberty to recover the custody of her children in accordance with the procedure established by law." 3. (1) Sultana Afri, (2) Suhana Farin and (3) Mohammad Sohail against the opposite party. The Opposite party/father is directed to deliver the custody of those children to the petitioner within a month of this order failing which the petitioner is at liberty to recover the custody of her children in accordance with the procedure established by law." 3. According to the present petitioner, in spite of her best endeavour and efforts, the opposite party husband did not deliver the custody of those children to the petitioner and for which she had no option left with except to appear before the Learned District Judge, Darjeeling in terms of the decree with an application for search warrant for execution of the said decree. This time Learned District Judge opined that earlier order dated 11.04.2013 was passed beyond jurisdiction and so the decree cannot be executed by his Court. 4. The Learned Counsel appearing on behalf of the petitioner has contended that District Judge himself has passed the decree but ultimately held that it was passed without jurisdiction. According to him, the District Judge had the jurisdiction and since a decree is obtained by him it was the duty of the District Judge concerned to execute the same. 5. I fail to understand as to how the same District Judge has passed two contradictory orders. Firstly, he has given the decree with a direction that the petitioner is at liberty to recover the custody of her children in accordance with the procedure established by law but when execution was in question the District Judge has given a somersault by giving a reason that he has passed the order of decree without jurisdiction. 6. In my considered view, the District Judge ought to have taken recourse to Order 21 and Rule 6 Admittedly, the children are residing with the opposite party at North Dinajpur. Therefore, District Judge was under an obligation to send the decree to that Court i.e. District Judge of North Dinajpore to execute the same but without adhering to that procedure he has come to the conclusion that he had no jurisdiction. Therefore, District Judge was under an obligation to send the decree to that Court i.e. District Judge of North Dinajpore to execute the same but without adhering to that procedure he has come to the conclusion that he had no jurisdiction. However, in the interest of the children, I do hereby direct the District Judge concerned to issue the search warrant as prayed for by the petitioner with a request to the District Judge, North Dinajpur to take effective steps by directing the concerned officer in charge of police station to recover the children after being identified by the petitioner and to produce them before the Learned District Judge Darjeeling on a date to be fixed by the District Judge, Darjeeling. In so doing, the concerned officer in charge shall go to the house of the opposite party in civil dress with the assistance of lady constable and lady sub-inspector who shall not be in police uniform and the said female police officers will take the assistance of Child Welfare Committee of North Dinajpur District and with the help of Child Welfare Committee, the officer in charge concerned shall produce the children before the Learned District Judge on the date so fixed by the Learned District Judge. Cost of journey of the children is to be borne by the petitioner. 7. The petitioner is hereby directed to be present on that day before the Court of the Learned District Judge, and thereafter the District Judge, Darjeeling will ascertain from the children also as to with whom they are comfortable and if their schooling will be affected or not. Thereafter he shall pass the necessary order. 8. In the result, the order passed by the Learned District Judge is hereby set aside. With this direction and observation, this civil revisional application is allowed. 9. Let a copy of this order be sent to the Learned District Judge, Darjeeling and the Learned District Judge, North Dinajpur as well as Chairman of Child Welfare Committee, North Dinajpur for their information and taking necessary action. 10. Learned Counsel appearing on behalf of the petitioner is hereby directed to send the copy of this order to the above mentioned parties within a fortnight. 11. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.