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2017 DIGILAW 359 (JHR)

Somnath Das v. State of Jharkhand

2017-02-20

H.C.MISHRA, S.N.PATHAK

body2017
JUDGMENT : 1. While dealing with F.A. No. 59 of 2016 and F.A. No. 68 of 2016 between the parties Somnath Das and Sheoli Hati, on 28.11.2016, in order to protect the future of the daughter of the parties, as also in order to ensure the visitation rights of the father to his daughter, we had passed the following order:- "7. Learned senior counsel for the father has submitted that the father is always ready to bear all the expenses of the education of the girl child Aditi. It is, however, submitted by the learned counsel that the father had talked to the Managements of all the schools and it is stated that in all these schools, the admissions are taken in Class-IV only, but in the present case, as a special case, the child may be admitted in Class-V, after one year, but for that, the registration is to be made in December, 2016 or in early January, 2017. It is submitted by learned counsel that looking into the welfare of the child, it would not be appropriate for waiting for two more years, as the child is going to complete the age of 10 years on 9.4.2017 and upon attaining the age of 11 years, which she shall be attaining on 9.4.2018, she must be admitted in class-V in any of the aforesaid schools. Accordingly, it is submitted that the period of two years, which was suggested by us for educating the child at Secret Heart School, Jamshedpur, be reduced to the period of one year, so that the registration for admission of the child may be made in one of the schools in December 2016, or in early January 2017 and she may be admitted in Class-V upon attaining the age of 11 years from the session starting in the year 2018. 8. We find the suggestion given by the learned senior counsel appearing for the father to be very fair, though learned counsel for the mother has some reservations and he submits that he wants to seek instructions from his client on this point also. We find that the welfare of the child lies in her education in one of the best schools in India, and the father is eager and ready to bear the entire cost of the same. We find that the welfare of the child lies in her education in one of the best schools in India, and the father is eager and ready to bear the entire cost of the same. The welfare of the child demands that she cannot be allowed to be deprived of the same. 9. Since, the mother has agreed to the suggestion made by us for getting the child Aditi educated in Secret Heart School, Jamshedpur, we hereby, direct both the parties to get the child admitted in Secret Heart School, Jamshedpur, in the appropriate class, in which, she is able to get her admission, the entire cost of which shall be borne by the father, as agreed upon by him. We propose to keep the matter pending for one year for watching the overall development of the child in the meantime, and to decide the future action in the matter upon getting the report from Secret Heart School, Jamshedpur. In the meantime and the father may get the registration done for admission of the child La Martiniere Girls School, Kolkata, situated in the state of West Bengal, which is situated nearer to Jamshedpur than all other boarding schools suggested by the father. This school shall also be convenient for the mother to visit from Jamshedpur, as and when so required. 10. We also direct that the visiting rights, as has been allowed by the Court below to the father during first half of every vacation, shall be allowed to be conveniently carried on by the mother without any hindrance by her. We are informed that this visiting right has not yet been allowed by the mother and the father was not allowed to take the child with him during the last vacation. Learned counsel for the mother agrees that the same shall be allowed to the father from this winter vacation. It is, accordingly, directed that during the winter vacation of 2016, the child, Aditi, shall be with her father at Bengaluru for the first half of the vacation and during the second half of the vacation, the child shall be with her mother. Learned counsel for the father agrees that if the mother feels, she herself, or her visiting counsel may also accompany the child Aditi and the traveling and other necessary expenses shall be borne by the father. Learned counsel for the father agrees that if the mother feels, she herself, or her visiting counsel may also accompany the child Aditi and the traveling and other necessary expenses shall be borne by the father. The said order, though it was passed with consent of learned counsel for the mother of the child, was not carried out and we are informed that though the letters were exchanged between the visiting counsels of the father and mother, in which, though the date for taking the child during winter vacation by the father to Bengaluru was agreed upon and all arrangements were made, but when the father went to take the custody of the child, he found the flat was locked and nobody was there. We are informed that in the meantime the mother moved before the Supreme Court against the order dated 28.11.2016 passed in F.A. No. 59 of 2016 and F.A. No. 68 of 2016, in S.L.A. (C) No. 37915-37916 of 2016, but the same was dismissed by the Apex Court by order dated 23.12.2016 in following terms:- "We do not find good ground to interfere with the impugned order of the High Court. In paragraph 14 of the order of the High Court, the High Court itself observed that the matter is kept pending for a period of one year, during which the High Court shall watch the overall development of the child after her admission in the Sacred Heart School, Jamshedpur. The matter being pending, it is always open for the petitioner to make such applications, for such reliefs as may be advised. With these observations, these special leave petitions are dismissed." 2. In spite of this order passed by the Supreme Court, the father was not allowed to take the child along with him and hence, this contempt application has been filed by the father. 3. We find the attitude of the mother absolutely hostile, who is present in the Court today and was also present on earlier occasion in the Court, i.e. on 6.2.2017. She is bent to somehow or other flout the order passed by this Court, which was also affirmed by the Supreme Court of India. Till today she has neither allowed the father to take his daughter with him to Bengaluru, nor the child has yet been admitted in Secret Heart School, Jamshedpur. 4. She is bent to somehow or other flout the order passed by this Court, which was also affirmed by the Supreme Court of India. Till today she has neither allowed the father to take his daughter with him to Bengaluru, nor the child has yet been admitted in Secret Heart School, Jamshedpur. 4. This position is not acceptable to us and we are of the considered view that the father is equally entitled to visit his child and to take her along him with him for some days during the breaks in her school and this shall be beneficial for overall development of the child also. We are constrained to note that the order has been wilfully disobeyed and prime facie, a case for contempt of Court is made out against the mother. 5. We think it proper that in view of the fact that final examinations of the child is over and now she is going to be admitted in upper class after her results, pending the publications of the examination results, the father should be allowed to take his daughter to Bengaluru even now, as during this period her education is not going to suffer in any manner. 6. In view of the order that we are going to pass today, we are not taking any coercive step against the mother right now, but it must not be taken by her, as if we cannot take any coercive step against her, if she continues with her hostile attitude to disobey the order by not allowing the father to exercise his visitation rights. The lady, who is present in the Court, has also agreed before us that the father may take the child to Bengaluru with him. 7. We accordingly, direct that the child Aditi Bishakha Das shall accompany her father to Bengaluru on 23rd of this month, and the mother shall prepare her to go with her father. The mother, who is present in the Court, readily agrees for the same. As agreed upon by the mother, the father shall take the custody of the child from her house situated at Jamshedpur, anytime in between 10.00 AM to 11.00 AM on 23.2.2017 and shall take her along with him to Bengaluru. The mother, who is present in the Court, readily agrees for the same. As agreed upon by the mother, the father shall take the custody of the child from her house situated at Jamshedpur, anytime in between 10.00 AM to 11.00 AM on 23.2.2017 and shall take her along with him to Bengaluru. The father shall bring the child back to Jamshedpur positively by 4.3.2017, so that she may join her school on 6th March 2017, on which date, we are informed that the report of the final examination is to be published. 8. It is made clear that on 23rd February 2017, if any hindrance is made by the mother in taking the custody of the child to the father, the father shall be entitled to take the help of Superintendent of Police, Jamshedpur, and the Superintendent of Police, Jamshedpur, shall ensure that the custody of the child is handed over to the father and for that purpose, even if some coercive step is required to be taken against the mother, he shall free to take that in accordance with law, treating her action to be contempt of this Court. 9. It goes without saying that we are giving the same liberty, as given in the order dated 28.11.2016 also, that the visiting counsel of the mother may also accompany the child Aditi to Bengaluru and her traveling and other expenses shall be borne by the father. We also give the liberty to the mother to accompany her child to Bengaluru, if she so likes, even at her own cost, if she does not want to take the cost from the father. If she wants to take the cost from the father, the father shall bear her cost also and shall make appropriate arrangements for her stay at Bengaluru separately. The visiting counsel of the mother shall be entitled to get her fees at the rate of Rs. 3000/- per day, from 23.02.2017 to 04.03.2017, if she visits Bengaluru with the child, apart from her traveling, lodging and boarding expenses at Bengaluru. 10. The visiting counsel of the mother shall be entitled to get her fees at the rate of Rs. 3000/- per day, from 23.02.2017 to 04.03.2017, if she visits Bengaluru with the child, apart from her traveling, lodging and boarding expenses at Bengaluru. 10. As we are also informed that the child has not yet been admitted in Sacred Heart School, Jamshedpur, we direct the Principal of Motilal Nehru Public School, Jamshedpur, where the child is presently studying, to hand over the report cards of the last two sessions to the father of the child, namely, Somnath Das, so that the father may produce the report card before the Sacred Heart School, Jamshedpur, and get the date for interview fixed for getting the child admitted in the Sacred Heart School. We direct that the mother shall bring the child to Sacred Heart School, Jamshedpur, on the date fixed for interview and the father shall also have the liberty to be present at the school, if so required. 11. Let this matter be listed again on 21.03.2017. 12. Let a copies of this order be given to the learned counsel for both the parties and be also sent to the Superintendent of Police, Jamshedpur and the Principal of Motilal Nehru Public School, Jamshedpur, for the needful.