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2017 DIGILAW 302 (CAL)

Arkapravo Das v. Madhuparna Das

2017-03-17

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : Ashis Kumar Chakraborty, J. This revisional application under Article 227 of the Constitution of India is directed against the order dated June 20, 2015 passed by the learned 15th Additional District Judge at Alipore, South 24-Parganas in Matrimonial Suit No. 07 of 2015 (originally numbered as MAT Suit No. 109 of 2013), in so far as the same rejected the application filed by the petitioner husband under section 151 of the Code of Civil Procedure (in short "the Code") for enforcement of an order allowing him to avail temporary custody of the minor son for half of the Summer Vacation, Puja holidays, Kali Puja, Bhatriditiya, Winter Vacation. 2. The short question that falls for consideration of this Court in this application is whether a party to the matrimonial suit can maintain an application under section 151 of the Code of Civil Procedure, 1908 (in short "the Code") to execute an order passed by the Court allowing him/her to visit the minor child. 3. The facts leading upto this revisional application may be briefly stated. The petitioner and the opposite party are the husband and wife and out of their wedlock a son was born who is still a minor. In June, 2013 the opposite party filed the aforementioned matrimonial suit, under section 27(1)(d) of the Special Marriage Act, 1954 (in short "the Act of 1954"), against the petitioner husband, before the Court of the learned 3rd Additional District Judge, Alipore, claiming a decree for dissolution of marriage which is contested by the petitioner. The minor child is in the custody of the opposite party wife and in the matrimonial suit the petitioner husband filed an application praying for permanent visitation of the minor child. In the meantime, the opposite party wife filed an application under Section 24 of the Code before the learned District Judge, Alipore, South 24 Parganas praying for, transfer of the matrimonial suit from the Court of the learned 3rd Additional District Judge at Alipore to any other Court at Alipore. In the meantime, the opposite party wife filed an application under Section 24 of the Code before the learned District Judge, Alipore, South 24 Parganas praying for, transfer of the matrimonial suit from the Court of the learned 3rd Additional District Judge at Alipore to any other Court at Alipore. During the pendency of the said application before the learned District Judge, by order dated May 31, 2014 the learned 3rd Additional District Judge, Alipore disposed of the application of the petitioner husband for permanent visitation of the minor child by directing that the petitioner will be entitled to avail temporary custody of the minor son for half of the Summer Vacation, Puja Holidays, Kali Puja, Bhatriditiya, Winter Vacation subject to a condition not to take the child out of Kolkata and return him back in safe custody of the opposite party after completion of the half of the holidays. By order dated January 19, 2015 the learned District Judge, Alipore allowed the application filed by the opposite party wife under Section 24 of the Code by withdrawing the matrimonial suit from the Court of the learned 3rd Additional District Judge, Alipore and transferring the same to the Court of the learned 15th Additional District Judge at Alipore, that is, the learned Court below. Thereafter, on February 19, 2015 the opposite party wife filed an application before the learned Court below praying for recalling of the above order dated May 31, 2014 passed by the learned 3rd Additional District Judge, Alipore. In view of the fact that the opposite party wife did not allow the petitioner husband to have the temporary custody of the minor son as directed by the order dated May 31, 2014 he filed an application, under Section 151 of the Code, before the learned Court below seeking enforcement of the said order dated May 31, 2014 by police assistance. On May 16, 2015 the learned Court below passed an order observing that the order dated May 31, 2014 is not complied with by the wife intentionally and the said order must be complied with in letter and spirit failing which, the Court shall take proper step as per law. On May 16, 2015 the learned Court below passed an order observing that the order dated May 31, 2014 is not complied with by the wife intentionally and the said order must be complied with in letter and spirit failing which, the Court shall take proper step as per law. The opposite party wife contested the application filed by the petitioner husband under Section 151 of the Code and she filed a further application before the learned Court below for recalling of the said order dated May 16, 2015. 4. The learned Court below heard all the aforementioned two applications filed by the opposite party wife under Section 151 of the Code, together with the application filed by the petitioner and by a common order dated June 20, 2015 disposed of all three applications. By the said order the learned Court below rejected both the applications filed by the opposite party wife for recalling of the orders dated May 31, 2014 and May 16, 2015, respectively. The learned Court below also rejected the application filed by the petitioner husband under Section 151 of the Code. With regard to the petitioner's application under Section 151 of the Code, the learned Court below held that the order dated May 31, 2014 is in operation, is effective, is in force and the petitioner has a remedy of initiating contempt of Court against erring/offending party suo motu or at the application of the affected party. According to the learned Court below in view of Section 39A read with Section 40 of the Act of 1955, the said order dated May 31, 2014 is executable under Order 21 of the Code and, as such, the remedy of the petitioner does not lie in filing an application under Section 151 of the Code. The learned Court below further held that there is specific provisions in Guardian Wards Act, 1890 for enforcement of order (Sections 43, 44 and 45) pertaining to custody/visitation the right of the challenge and the provisions contained in the said Sections of the Guardian and Wards Act, 1890 may also be applicable for enforcement of the said order dated May 31, 2014. On these grounds, the learned Court below rejected the application filed by the petitioner under Section 151 of the Code for enforcement of the order dated May 31, 2014. On these grounds, the learned Court below rejected the application filed by the petitioner under Section 151 of the Code for enforcement of the order dated May 31, 2014. As mentioned at the outset, it is the decision of the learned Court below in the said order dated June 20, 2015 rejecting the application of the present petitioner under Section 151 of the Code which is the subject matter of challenge in this revisional application. 5. Although, the opposite party wife also filed a revisional application, being C.O. 3221 of 2015 before this Court, challenging the said order dated June 20, 2015 passed by the learned Court below rejecting her prayer for recalling of the orders dated May 31, 2014 and June 16, 2015. She, however, did not pursue the said revisional application, C.O. 3221 of 2015 and the same was dismissed for default by this Court on March 3, 2017. 6. It may noted that on October 6, 2015 when both the revisional applications filed by the petitioner, as well as the opposite party were taken up for hearing, a learned Single Judge of this Court passed an order that by way of an interim management passed the following order. "........... By way of an interim arrangement, the father shall take the child from the mother during school vacation of the child, which shall not exceed four days in total and shall thereafter return the child to the mother. A prior intimation shall be given to the mother for taking the child so that necessary arrangements can be made. If the father wants to meet the child at his residence during the vacation, the mother shall allow the father to meet, which shall not exceed one hour in a day. In case of any inconvenience because of the unforeseen circumstances, the mother shall communicate the same to the father well in advance. Both the learned Advocates representing the parties are requested to sit together and make an attempt if the parties can arrive at the mutual settlement." 7. It is submitted on behalf of the petitioner that in terms of the said order dated October 5, 2015 the minor son was handed over to the petitioner, but thereafter, the parties failed to settled the disputes. 8. Since none appears on behalf of the opposite party wife, this application is taken up for final hearing in her absence. 9. Mr. 8. Since none appears on behalf of the opposite party wife, this application is taken up for final hearing in her absence. 9. Mr. Debanjan Mukherjee, learned advocate appearing for the petitioner with Mrs. Debabeena Mukherjee for the petitioner husband submitted that in spite of the direction passed by the learned Court below in the said order dated May 21, 2014 the opposite party wife has not allowed the petitioner to avail of the temporary custody of the minor child for half of the summer vacation, puja holidays, Kali Puja, Bhatriditiya, winter vacation. According to him, when the learned Court below rejected the applications filed by the opposite party wife for recalling of the orders dated May 31, 2014 and June 16, 2015 and held that the said order dated May 31, 2014 is in operation and in force the learned Court below committed an error of law to hold that the remedy of the petitioner to enforce the said order dated May 31, 2014 for obtaining temporary custody of the minor child lies in filing an application for contempt of Court against the opposite party. It was strenuously contended that although Section 39A, read with Section 40 of the Act of 1955 provides for execution of an order passed by a Court under the said Act as per the provisions of the Code, but when the provisions contained in Order 21 of the Code provides no remedy for execution of the said order dated May 31, 2014, the learned Court below fell into an error of law to hold that the petitioner's application under Section 151 of the Code for enforcing the said order dated May 31, 2014 is not maintainable. Mr. Mukherjee submitted that it is settled law when the Code does not expressly or impliedly cover any particular procedural aspect, the Court can exercise its inherent power under Section 151 of the Code to deal with such situation or aspect, if the ends of justice warrant it. In support of such contention, he relied on the decision of the Division Bench of this Court in the case of Sujit Pal v. Prabir Kumar reported in AIR 1986 Calcutta 220, as well as the decision of the Supreme Court in the case of K.K. Velusamy v. N. Palanisamy reported in (2011) 11 SCC 275 . In support of such contention, he relied on the decision of the Division Bench of this Court in the case of Sujit Pal v. Prabir Kumar reported in AIR 1986 Calcutta 220, as well as the decision of the Supreme Court in the case of K.K. Velusamy v. N. Palanisamy reported in (2011) 11 SCC 275 . On the strength of the said decisions it was argued on behalf of the petitioner husband that although the provisions contained in Section 40 of the Act of 1955 provides the decrees and orders passed by the Court under the Act shall be enforced in the like manner as decrees or orders of the Court made in the exercise of its original civil jurisdiction and the provisions of the Code are applicable to the proceedings under the said Act, but inasmuch as there is no provision in Order 21 of the Code providing for mode of execution of the order dated May 31, 2014 in the present case, the petitioner's application under Section 151 of the Code was well maintainable and the learned Court below fell into an error of law in rejecting the said application. 10. I have considered all the materials on record and the arguments advanced on behalf of the petitioner's husband. From the facts of the case as stated above, it is clear beyond any doubt that the said order dated May 31, 2014 passed by the learned Court below is still subsisting and in spite thereof, the opposite party wife has not allowed the petitioner husband to have temporary custody of the minor son for Summer Vacation, Puja Holidays, Kali Puja, Bhatriditiya, Winter Vacation, Christmas Vacation. As per Section 39A of the Act of 1955, the petitioner husband is entitled to enforce/execute the said order dated May 31, 2014. Although, as per Section 40 of the Act of 1955 the provisions of the Code are applicable to the proceedings before the learned Court below in the matrimonial suit, but the provisions contained in Order 21 of the Code do not provide for any mode of execution of the said order dated May 31, 2004. Although, as per Section 40 of the Act of 1955 the provisions of the Code are applicable to the proceedings before the learned Court below in the matrimonial suit, but the provisions contained in Order 21 of the Code do not provide for any mode of execution of the said order dated May 31, 2004. Therefore, the finding of the learned Court below went wrong in law to hold in view of the provisions contained in Section 40 of the Act of 1955, the petitioner's application under Section 151 of the Code for enforcement of the said order dated May 31, 2014 was not maintainable. As held by the Supreme Court in the case of K.K. Velusamy (supra), Section 151 of the Code merely recognises the discretionary power inherent in every Court as a necessary corollary for rendering justice in accordance with law, to do what is "right" and undo what is "wrong", that is, to do all things necessary to secure the ends of justice and prevent abuse of its process; the inherent powers of the Court being complementary to the powers specifically conferred, a Court is free to exercise them if the ends of justice warrant it. Even in the case of Sujit Pal (supra) the Division Bench of this Court held that the inherent power of the Court as recognised in Section 151 of the Code is in addition to the power conferred on the Court under the provisions of the Code and all that the Court is concerned is to prevent abuse of process of Court and to do justice by immediately intervening under circumstances which require such intervention by the Court. 11. Further, when the said order dated May 31, 2014 was passed in matrimonial suit filed between the parties under the Act of 1955, no question could arise that the said order could be enforced under the Guardians and Wards Act, 1890. Therefore, when the said order dated May 31, 2014 was passed by the learned Court below in the matrimonial suit filed by the opposite party wife under the Act of 1955, the learned Court below committed a patent illegality in holding that the petitioner husband has a remedy under the Guardian and Wards Act, 1890 for enforcement of the said order. 12. 12. Even in the case of violation of an order of injunction passed by a Court under Order 39 Rules 1 and 2 of the Code, an aggrieved party can file an application under Section 151 of the Code for enforcement of the injunction order to police assistance. In this regard, reference may be made to the decisions of this Court in the case of Saudamini Roychowdhury v. Satyendra Nath Sarkar reported in 85 CWN 958, Sunil Kumar Haldar v. Nisikanta Bhandari reported in AIR 1983 Calcutta 266 and Smt. Charubala Dev Nath v. Shri Niranjan Pathak reported in 1993(2) Cal LT 449. 13. For all the reasons as aforesaid, I find that the impugned order dated June 20, 2015 passed by the learned Court below rejecting the application to the petitioner under Section 151 of the Code cannot be sustained and the same stands set aside. 14. The matter is remitted back to the learned Court below with a direction to dispose of the application filed by the petitioner husband under Section 151 of the Code, by appointing a Special Officer, preferably a lady advocate for enforcement of the aforementioned order dated May 31, 2014, if necessary with police help. The learned Court shall expeditiously dispose of the application of the petitioner within a period of one month from the date of communication of this order. 15. With the above directions, the revisional application, being C.O. 3221 of 2015 stands allowed. 16. However, there shall be no order as to costs. 17. Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.