Sabyasachi Dutt, Son of Dr. Jimut Bahan Dutt v. Suzanne Farisha Syiem Dutt, Wife of Dr. Sabyasachi Dutt
2017-11-24
A.K.GOSWAMI
body2017
DigiLaw.ai
JUDGMENT & ORDER : Heard Mr. S. Guhathakurata, learned counsel for the petitioner. Also heard Ms. M. Borah, learned counsel appearing for the respondent. 2. By this petition under Article 227 of the Constitution of India, the petitioner calls into question the orders dated 07.07.2017, 08.08.2017 and 07.11.2017 passed by the learned Principal Judge, Family Court-I, Kamrup (M) at Guwahati in Misc. (G) Case No.21/2017. Order dated 07.07.2017 was passed in a petition bearing No. 395/2017, order dated 08.08.2017 was passed in Review Petition bearing No.1660/2017 and the order dated 07.11.2017 was passed in a petition bearing No. 2616/2017. 3. On 17.11.2017, this Court had passed the following order:- “Heard Mr. S. Guhathakurata, learned counsel for the petitioner. Also heard Ms. M. Borah, learned counsel for the respondent. In this petition at paragraph 30, averment is made that the prayer of adjournment made by the Advocate on record on behalf of the petitioner to obtain certified copy of the order dated 7.11.2017, which is also impugned in this petition, is not furnished. Mr. Guhathakurata has submitted that by the aforesaid order, while refusing the prayer for adjournment made by the petitioner, evidence of the petitioner was closed. It is further submitted by Mr. Guhathakurata that although in terms of the order of the Supreme Court dated 17.11.2016, the respondent was to bring the son of the parties to Guwahati to enable the petitioner to meet him, by the order dated 7.7.2017, in violation of the order of the Supreme Court, meeting place had been changed from Guwahati to Shillong. It is also submitted by him that the prayer for review filed against the said order dated 7.7.2017 was also dismissed. As the order dated 7.11.2017 is not on record for the reasons stated by the petitioner, Registry will call for the records of Misc. Guardianship Case No. 21/2017 from the Court of the learned Principal Judge, Family Court-I, Kamrup(M), Guwahati by special messenger to be produced before the Court on 24.11.2017. List the case on 24.11.2017. Till then, further proceeding in Misc. Guardianship Case No. 21/2017 pending in the Court of the learned Principal Judge, Family Court-1, Kamrup(M), Guwahati shall remain suspended. As the parties are represented, it is made clear that an attempt will be made to dispose of this petition on 24.11.2017. Bring this order to the notice of the Joint Registrar (Judicial).
Till then, further proceeding in Misc. Guardianship Case No. 21/2017 pending in the Court of the learned Principal Judge, Family Court-1, Kamrup(M), Guwahati shall remain suspended. As the parties are represented, it is made clear that an attempt will be made to dispose of this petition on 24.11.2017. Bring this order to the notice of the Joint Registrar (Judicial). Registry will reflect the name of Ms M. Borah, learned counsel for the respondent in the cause-list.” 4. Pursuant to the aforesaid order, records have been received. 5. Before proceeding further, it will be apposite to take note of an order of the Hon’ble Supreme Court dated 17.11.2016 passed in Transfer Petitions (Civil) No(s).1635/2016. A perusal of the aforesaid order goes to show that the respondent herein, i.e. the wife of the petitioner, sought transfer of Case No. 27/2016 pending in the Court of the learned District Judge, Alipore, South 24-Parganas, West Bengal to a Court of competent jurisdiction at Shillong, Meghalaya. By the aforesaid order, the Hon’ble Supreme Court directed the case to be transferred to the Court of the learned District Judge, Guwahati, Assam, giving liberty to the learned District Judge to decide the case or to assign it to a Court of competent jurisdiction. The Hon’ble Supreme Court requested the Court at Guwahati, Assam to make an endeavour to decide the case as expeditiously as possible and in any case within 6(six) months. While giving liberty to the husband to make an application for visitation rights for having access to the child, as an interim arrangement, the Hon’ble Supreme Court directed that as and when the case is fixed in the Court at Guwahati, Assam, the wife shall bring the child to Guwahati to enable the husband to meet the child. The Hon’ble Supreme Court also made it clear that as and when orders are passed by the Court at Guwahati on the application of the petitioner, it would be open to the Court to vary the aforesaid arrangement. 6. The petitioner filed an application to allow the petitioner to visit his minor child for access at Guwahati and prayed for a direction to the wife to produce the child at Guwahati on each Friday morning so that he can stay with the petitioner up to Sunday evening of every week.
6. The petitioner filed an application to allow the petitioner to visit his minor child for access at Guwahati and prayed for a direction to the wife to produce the child at Guwahati on each Friday morning so that he can stay with the petitioner up to Sunday evening of every week. By the order dated 07.07.2017, the learned Family Court observed that during the pendency of the case, the father will certainly have a right of visitation to see his child but only after giving due intimation to the mother. It was directed that the petitioner would have visitation rights from approximately 10:00 AM to 5:00 PM on Saturday and Sunday of every week at Shillong and he should return the child positively to the wife after the time was over. It was also provided that the petitioner would be allowed to travel the minor child within the State but not outside the State of Meghalaya. 7. A review application was filed by the petitioner against the said order. The plea taken in the review petition by the petitioner that there was security apprehension on the part of the petitioner if he travels to Shillong to meet the child was disposed of by the learned Family Court holding that security threat was not evident and that at any stage, the place of visitation rights may be changed if it is proved that there is a real threat. The learned Family Court, balancing the competing equities, taking note of the fact that the child was staying with his mother at Shillong, considered that it is in the best interest of the child that the place of visitation should be at Shillong and accordingly, rejected the petition. 8. Order dated 07.11.2017 was passed rejecting a petition filed praying for grant of time to adduce evidence on the ground of illness and at the same time, closing the evidence of the petitioner. 9. Mr. Guhathakurata submits that the petitioner has now recovered from his illness and that he has, in fact, come to Guwahati today. He submits that if one more opportunity to submit his evidence is not granted, the petitioner will suffer grave prejudice.
9. Mr. Guhathakurata submits that the petitioner has now recovered from his illness and that he has, in fact, come to Guwahati today. He submits that if one more opportunity to submit his evidence is not granted, the petitioner will suffer grave prejudice. He also contends that the petitioner will be in a position to file the evidence of his 2(two) witnesses on 29.11.2017, which is the next date fixed, and the petitioner will not seek any more opportunity to submit his evidence. It is submitted by him that only because of the illness, the petitioner had to pray for time. Further submission of Mr. Guhathakurata is that in view of the order of the Supreme Court, the learned Family Court could not have changed the place of visitation from Guwahati to Shillong and that apart, the petitioner has apprehension regarding his safety at Shillong and, therefore, in the facts and circumstances of the case, the place of visitation right of the petitioner ought to be changed from Shillong to Guwahati. 10. Ms. Borah submits that the petitioner has consistently not appeared before the learned trial Court though it was he who had filed the application under Section 25 of the Guardians & Wards Act, 1890, thereby needlessly delaying the proceedings. Though ground of illness was cited for seeking adjournment, no medical certificates were submitted. The learned counsel submits that the Hon’ble Supreme Court had granted liberty to the learned Family Court to vary the interim arrangement of production of the child at Guwahati when the case is fixed after transfer. She submits that keeping the best interest of the child, the place of meeting the child was fixed at Shillong and no interference with the arrangement made by the learned Family Court is called for. 11. I have considered the submissions of the learned counsel appearing for the parties and have also perused the materials on record. 12. Perusal of the records indicates that on 18.03.2017, the petitioner was present before the learned Family Court. The respondent was also present along with the minor son. Order dated 08.08.2017 goes to show that the petitioner was not present and a petition was filed stating that due to his illness, he could not come. The respondent was, however, present.
12. Perusal of the records indicates that on 18.03.2017, the petitioner was present before the learned Family Court. The respondent was also present along with the minor son. Order dated 08.08.2017 goes to show that the petitioner was not present and a petition was filed stating that due to his illness, he could not come. The respondent was, however, present. Next date was fixed on 18.08.2017 and on that date also, the petitioner prayed for dispensing with his personal attendance on the ground that his health condition was not good. The respondent was present. The personal attendance of the petitioner was dispensed with for that day. It also reveals from the said order that the counsel had addressed arguments on a petition filed by the petitioner being Petition No.1745/2017 for amendment of the plaint and that the same was rejected. on the prayer of the learned counsel for the petitioner to fix the next date after 10(ten) days, 28.08.2017 was fixed for filing evidence on affidavit of the petitioner’s side and also hearing on certain petitions, which are referred to in the said order. On 28.08.2017, both the parties were absent. The petitioner was absent on the ground that he has not fully recovered. The respondent showed cause for her absence stating that she had to attend another case at Shillong on that day. The learned Family Court fixed 07.09.2017 as the next date for evidence of the petitioner’s side and hearing of the petitions. 13. On 07.09.2017, once again a petition was filed by the learned counsel for the petitioner praying for adjournment on the ground that he was unable to attend Court due to his illness. Although there was no medical certificate accompanying the petition, the learned Family Court granted last chance to the petitioner for filing evidence on affidavit and fixed 20.09.2017. On 20.09.2017, the petitioner was again absent and a petition was filed by the learned counsel for the petitioner praying for adjournment on the ground that the petitioner could not appear to adduce his evidence as he had been suffering from continuous bleeding due to blood pressure and hypertension. The petition filed by the counsel for the petitioner for allowing audio-video recording was rejected on the ground that there was no video conferencing facility in the Court.
The petition filed by the counsel for the petitioner for allowing audio-video recording was rejected on the ground that there was no video conferencing facility in the Court. Despite last chance being given to the petitioner and despite the fact that no recent medical document had been furnished, one more chance was allowed for evidence of the petitioner’s side fixing 26.10.2017. However, it being declared a Government holiday, case was fixed on 07.11.2017. 14. On 07.11.2017 also, the petitioner was absent. One more petition was filed by the counsel for the petitioner praying for adjournment stating that the petitioner had been suffering from various ailments and he is on the way to recovery and that he needs few days time to appear and adduce evidence. The respondent was also absent on that day on the ground of suffering from viral fever. As the petitioner had not appeared without furnishing any medical documents, taking note of the events of the last couple of dates where the petitioner had continuously remained absent and the fact that one more chance was given even after the last chance was granted earlier, the learned Family Court thought it justified and proper to reject the petition and accordingly, the evidence of the petitioner was closed. 15. Mr. S. Singh, learned counsel, who is assisting Mr. Guhathakurata and who is also a counsel for the petitioner in the learned Family Court, makes a statement before the Court that on 07.11.2017, he did receive a medical certificate through e-mail but due to some technical fault, the same could not be downloaded and, therefore, the adjournment petition was filed without any medical certificate. 16. Upon due consideration of the submissions of the learned counsel appearing for the parties and specifically taking note of the submission of Mr. Guhathakurata, I consider it appropriate to grant one more opportunity, as prayed for by Mr. Guhathakurata, to submit the evidence on affidavit of the petitioner and his witness on 29.11.2017. Ordered accordingly. 17. The mandate of the Hon’ble Supreme Court was for disposal of the case within a period of 6(six) months. Ms. Borah submits that from this stage onwards, perhaps within a month or so, the entire proceeding can be closed. It is already more than a year.
Ordered accordingly. 17. The mandate of the Hon’ble Supreme Court was for disposal of the case within a period of 6(six) months. Ms. Borah submits that from this stage onwards, perhaps within a month or so, the entire proceeding can be closed. It is already more than a year. Therefore, the learned Family Court will fix the dates of the case in such a manner so that the case can be disposed of most expeditiously. 18. So far as the visitation right of the petitioner is concerned, I am not inclined to interfere with the order of the learned Family Court. Having regard to the order of the Hon’ble Supreme Court, whereby liberty was granted to the learned Court at Guwahati to vary the interim arrangement, I am of the considered opinion that the learned Family Court had the discretion to alter the interim arrangement, which was so done, keeping in mind the best interest of the child and at the same time keeping the option of changing the place of meeting of the child in case of satisfaction that there is real threat to the petitioner at Shillong. However, as the petitioner has not met his child for some time, it is provided that the respondent will bring the child on 29.11.2017 to the Court and the learned Family Court will facilitate an arrangement within the Court premises so that the petitioner can have some quality time with the child. 19. With the above observations and directions, the revision petition is disposed of. No cost. 20. As the next date is fixed on 29.11.2016, the Registry will send down the records immediately by a special messenger to the Court of the learned Principal Judge, Family Court-I, Kamrup (M) at Guwahati. 21. Bring this order to the notice of the Joint Registrar (Judicial).