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2018 DIGILAW 1172 (GAU)

Uddipana Goswami v. Suman Kalyan Chakrabarti

2018-08-08

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

body2018
JUDGMENT : A.M. Bujor Barua, J. Heard Ms. Z. Kher, learned counsel for the applicant as well as Ms. R. Baruah, learned counsel for the opposite party. 2. Alleging willful and deliberate violation of the order dated 02.02.2013 of the Principal Judge, Family Court, Guwahati passed in Case Misc. (G) No. 120/2012, the Cont.Cas(C) No.129/2017 was filed by the opposite party. The said order of 02.02.2013 was an order made in favour of the opposite party for interim custody of the minor child of the applicant and the opposite party. 3. By the order, the opposite party was allowed to visit the minor child for three hours, twice a month, either in the State Zoo or at Sradhanjali Kanan at Guwahati or at any other place according to the convenience of the parties. The order further provided that both parties are required to comply with it until further orders. 4. According to the opposite party/petitioner, the applicant had taken away the minor child out of India without informing the opposite party, as a result of which, he was unable to meet his minor son and in doing so, the applicant had not even informed the Court about her moving out of India, and as such, committed a willful and deliberate violation of the order dated 02.02.2013. 5. In the Contempt Case, the next date of hearing was fixed on 20.08.2018. In the circumstance, the applicant preferred I.A.(C) No.2518/2018, inter alia seeking that the date of hearing be preponed to a date between 04.08.2018 to 10.08.2018 on the premises that the applicant would be available in Guwahati on the aforesaid date as she has to return back to the United States of America on 11.08.2018. Upon an agreement between the parties, accordingly the next date of hearing of the Contempt Case was fixed on 08.08.2018 i.e. today and by the order dated 20.07.2018, it was also directed that the applicant would remain present in the Court along with the child. When the matter is taken up today, the applicant along with the child is present in the Court, but the opposite party has cited certain medical grounds for which he could not remain present. 6. When the matter is taken up today, the applicant along with the child is present in the Court, but the opposite party has cited certain medical grounds for which he could not remain present. 6. The applicant in the circumstance prefers this interlocutory application inter alia praying that the order dated 02.02.2013 of the learned Family Court allowing the opposite party to visit the minor child for three hours twice a month, either in the State Zoo or at Sradhanjali Kanan or at any other place according to the convenience of the party be suitably modified, so as to enable the applicant to facilitate necessary compliance thereof in the changed factual circumstance as it exists today. 7. According to the applicant for which a detailed statement has also been annexed, the order dated 02.02.2013 had been duly complied with by her and the opposite party was allowed and had met the child as required at various places convenient to the parties. But according to the applicant, in the context of the present relationship with her husband, she is required to undertake certain activities for furtherance of her own career which necessitated her moving over to the United State of America. According to her due to the changed circumstance, it may not be possible any further for a strict compliance of the requirement of the order dated 02.02.2013 in the manner provided therein, although she is not averse for complying with the substantial requirement of the said order to the effect that the opposite party be allowed to meet the minor child. 8. According to the applicant, it is not that she is preventing the opposite party from meeting the minor child, but taking a balance view vis-a-vis her requirement and right to pursue a career of her own, the manner and terms of meeting the child would have to be altered suitably. The applicant states that before leaving for the United State of America, she had submitted an appropriate application before the Family Court at Guwahati for a suitable alteration/modification of the order dated 02.02.2013 but inspite of the same, appropriate orders thereof could not be passed. The applicant also takes a stand that similar application was again filed before the Family Court at Guwahati on 31.07.2018 with prior notice to the opposite party though his engaged counsel and the same was registered as Petition No.3073/2018. The applicant also takes a stand that similar application was again filed before the Family Court at Guwahati on 31.07.2018 with prior notice to the opposite party though his engaged counsel and the same was registered as Petition No.3073/2018. It is stated that in the said application notice was issued to the opposite party and the next date for further consideration is fixed on 09.08.2018 i.e. tomorrow. 9. In the resultant circumstance, the applicant takes a stand that there is no willful and deliberate violation by her of the order dated 02.02.2013 passed in Case Misc. (G) No. 120/2012 and on the other hand, she had filed appropriate application before the Family Court Guwahati for alteration and modification of the said order so as to suit her present requirement. The applicant also takes a stand that over the passage of time, the procedure and method to be adopted for enabling the opposite party to meet the child would also have to be suitably altered as the strict adherence to the method provided in the order dated 02.02.2013 would remain highly unsuitable for her and would also affect her right to carry on with her own career. 10. We have considered the submission of Ms. Z. Kher, learned counsel for the applicant and Ms. R. Baruah, learned counsel for the opposite party. 11. As regards the question as to whether there is any willful and deliberate violation of the Courts order by the applicant, we also take note of the fact that up to the year 2016 when the applicant in course of her regular activities was residing in Guwahati, the order dated 02.02.2013 was duly complied with without there being any allegation of violation thereof by the opposite party. 12. Further when the applicant in course of her regular activities was required to move out to the United State of America for pursuing with her career, she made an application before the Family Court, Guwahati for appropriate orders, which apparently has not been given a final consideration. Again when she returned back to India she filed another application which is numbered as Petition No.3073/2018 and the same is fixed for hearing on 09.08.2018. 13. Again when she returned back to India she filed another application which is numbered as Petition No.3073/2018 and the same is fixed for hearing on 09.08.2018. 13. In the circumstance, we are of the view that the respective rights of the parties i.e. of the applicant to pursue with her career and that of the opposite party to meet the minor child would be better served, if the said Petition No.3073/2018 is given a final consideration or the some appropriate order is passed thereon by taking into account the change of circumstance that has taken place between the parties. 14. In terms of the above, this I.A. stands allowed by providing that till such further order is passed by the Family Court at Guwahati in Petition No. 3073/2018, the order dated 02.02.2013 be not acted upon by either of the parties, subject to that, if it is convenient between the parties to make it possible for the opposite party to meet the child as indicated in the order dated 02.02.2013 at any place of mutual convenience, the parties may continue to do so.