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2017 DIGILAW 873 (CAL)

Joydeep Sur v. Pronita Sur

2017-11-14

I.P.MUKERJI, PROTIK PRAKASH BANERJEE

body2017
JUDGMENT : 1. First of all, learned counsel for the respondent/wife raised the point of maintainability. He argued that since the order under appeal was an interim order under section 26 of the Hindu Marriage Act, 1955 it was not appealable under section 28 thereof. We have gone through section 26 in detail. It provides for certain stages of a proceeding. Section 26 envisages a kind of a mini proceeding within the main proceeding for custody of a child where an order may be final or interlocutory. Again the final order in the Section 26 application can be incorporated in the decree in the matrimonial proceeding. The final order is appealable, 2. In this case, the matrimonial proceeding has not been decreed. However, a proceeding under section 26 has attained finality by passing the impugned order dated 23rd August, 2016. Therefore, the impugned order is a final order. It is appealable. 3. Therefore, the maintainability part is rejected. 4. At this time we are not disposing of the appeal. The minor son whose custody is sought by the appellant/father is about 10 years of age. He is studying in Delhi Public School near Ruby Hospital, Kolkata. The mother is a teacher of that school. He is at present living with his mother's family in Behala, while the father is living in Dover Court, Kolkata. 5. The agony of the father is that he has no right as of now to visit the child. He has not visited the child for a long time. On the other hand, it is said by learned counsel for the respondent that the father flouted "previous visitation orders". Even now he is permitted to visit the child at the wife's residence but has not been doing so. The father justified his conduct by saying that the wife's brother was mentally ill and he was fearful of him. 6. We feel that this time, as an interim measure the father should have immediate access to his son. We direct that every Sunday at about 1.00 p.m the mother will bring the son to Main Land China, a restaurant on Gurusaday Road. In this regard, previous or standing booking will be made by the father in that restaurant. The child shall remain with the father for about two hours. It is desirable that the mother should not be present there. In this regard, previous or standing booking will be made by the father in that restaurant. The child shall remain with the father for about two hours. It is desirable that the mother should not be present there. The father shall be permitted to be accompanied by his mother (the child's grandmother). The child should be left in the exclusive company of his father and grandmother for the period of two hours. 7. If the mother feels, she would be free to occupy a seat in that restaurant at a distance from where she can see the child but cannot hear any conversation. List the appeal on 14th December, 2017.