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2018 DIGILAW 578 (CAL)

Husain Dhariwala v. Fatema Hussain Dhariwala

2018-08-17

SABYASACHI BHATTACHARYYA

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JUDGMENT : The grievance of the petitioner-father is that, by virtue of the impugned order, visitation has been granted to the father fortnightly, for three hours on two consecutive days on each occasion, at Surendra Nagar, Gujarat, where the child, along with her mother are staying. 2. It is argued on behalf of the petitioner that it would be difficult for the father to travel to Surendra Nagar Gujarat, fortnightly for such purpose, more so, in view of specific allegations having been raised against the brothers of the opposite party-mother, who are alleged to be of some influence in the neighborhood of the child’s residence. Further allegations have been made in respect of the upbringing of the child in the hands of the mother. It is also argued on behalf of the petitioner that, visitation at Surendra Nagar, Gujarat would preclude the rest of the family members of the petitioner from seeing the child, which would be a considerable hardship for the entire family. 3. In controverting such arguments, learned counsel for the opposite parties raised preliminary objection as to the maintainability of the proceeding in the Alipore Judges’ Court, in view of the child ordinarily residing in Surendra Nagar, Gujarat, which has to be the situs for filing the application as per law. It is further argued that there is no jurisdictional error in the order, since the baby is only two and half years old and it would be troublesome to bring her to Kolkata every time when visitation is scheduled. As such, learned counsel for the opposite parties submits that the impugned order was passed within jurisdiction and ought not to be interfered with. 4. A judgment is cited by the opposite parties, reported at AIR 2004 Kar. 321 (Abraham G. Karimpanal and others v. Nil), where a Division Bench of the Karnataka High Court held inter alia that jurisdiction of a court to entertain an application under Section 7 of the Family Courts Act was not the choice of the parties, but was a matter of law. If such an application was filed before an appropriate forum in consonance with law, the said forum had to take up the matter and could not transfer it somewhere else on the grounds of expediency or convenience or choice of the parties. 5. The facts of the cited judgment are different from the instant case. If such an application was filed before an appropriate forum in consonance with law, the said forum had to take up the matter and could not transfer it somewhere else on the grounds of expediency or convenience or choice of the parties. 5. The facts of the cited judgment are different from the instant case. In any event, it is seen that the opposite party-mother has not yet filed her written objection in the main proceedings or in the interim custody application, on which the interim order was passed. There was no occasion where the mother raised such objection as to territorial jurisdiction and, as such, the said argument could not be made for the first time before this Court. However, it will be left open for the opposite parties to agitate this point, if necessary, at time of hearing of the application itself. 6. From the factual scenario of the instant case, it appears that the direction for visitation given by the trial court was a bit lopsided, inasmuch as the custody of the child is already with the mother and visitation at Surendra Nagar, Gujarat would entirely deprive the family members of the petitioner from having any interaction with the child whatsoever. Such a situation would not be congenial to proper upbringing and welfare of the child. Since in custody matters, paramount consideration is the welfare of the child, such aspect of the matter ought to have been considered by the trial court. 7. Hence, for the ends of justice and for a proper interaction of the child with the family members of both the parents, it would be proper if the visitation rights would occur on very third occasion at Kolkata at a place, which would be arranged by the petitioner for a temporary stay of the mother and the child. 8. Accordingly, C.O. No. 709 of 2018 is disposed of by modifying the impugned order to the effect that the petitioner will visit the child every two consecutive fortnights, for three hours each on two consecutive days on each occasion, and on every third occasion, the mother will bring the child to Kolkata and will stay at an appropriate accommodation to be arranged by the petitioner at his own cost. The hours of visitation on such occasion will also be for three hours on two consecutive days. The hours of visitation on such occasion will also be for three hours on two consecutive days. It is made clear that the petitioner-father will purchase flight tickets for the mother and the child and send those sufficiently in advance to the opposite party-mother prior to such visitation in Kolkata and will arrange for appropriate accommodation for the mother and the child on every such occasion at any hotel, but not at the petitioner’s place of residence or at the place of residence of any relative of the petitioner. It is made clear that this arrangement is made on ad hoc basis, subject to modification by the trial court at any future point of time upon any application being filed by either of the parties. If such an application is made, the trial court will adjudicate upon the same on its own merits without being influenced by any direction or observation made in this order or in the order impugned herein. 9. There will be no order as to costs. 10. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.