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1997 Supreme(Cal) 179
IN THE HIGH COURT AT CALCUTTA
Dipak Prakas Kundu, Debi Prasad Sarkar-II, JJ.
Souparno Chaudhuri – Appellant
Versus
Shrimati Kalpana Chowdhury – Respondent
Appeal No. 2819 of 1996
Decided On : April 21 & 22, 1997
Mr. Subhro Kamal Mukherjee and Debasish Roy for the Appellant
Mr. Subrata Mukhopadhyay and Pradyut Kumar Datia for the Respondent
An order regarding the custody of a minor child is appealable under Section 39(2) of the Special Marriage Act, as it affects the rights and liabilities of the parties.
Headnote:
CUSTODY OF MINOR CHILD - SPECIAL MARRIAGE ACT, 1954 - SECTION 38, 39(2) - APPEALABILITY OF ORDER - INTERIM ORDER - FINAL ORDER - JURISDICTION - REVISION - MAINTENANCE AND EDUCATION OF MINOR CHILD - MODIFICATION OF ORDER - INTEREST OF CHILD - PARENTAL RIGHTS - CUSTODY ARRANGEMENTS - VISITATION RIGHTS.
Fact of the Case:
The case involved a dispute over the custody of a minor child between the husband and wife, who were separated. The child was initially given to the absolute custody of the mother, but the father was allowed to have the child's company for a day and a half every week. Later, the father filed a petition under Section 38 of the Special Marriage Act for custody of the child, which was dismissed by the District Judge.
Finding of the Court:
The court held that the impugned order was appealable under Section 39(2) of the Special Marriage Act, as it affected the rights and liabilities of the parties. The court also held that the revisional application under Section 115 of the Code of Civil Procedure was not maintainable, as the impugned order was not an interlocutory order but a final order in itself.
Issues: 1. Whether the impugned order was appealable under Section 39(2) of the Special Marriage Act? 2. Whether the revisional application under Section 115 of the Code of Civil Procedure was maintainable?
Ratio Decidendi: 1. The court held that the impugned order was appealable under Section 39(2) of the Special Marriage Act, as it affected the rights and liabilities of the parties. The court relied on the principle laid down by the Supreme Court in The Central Bank of India v. Gokal Chand, which held that an order which affects the right or liability of a party should be appealable, but no Appeal should lie from an interlocutory order which is merely procedural or does not affect the rights or liabilities of the parties. 2. The court held that the revisional application under Section 115 of the Code of Civil Procedure was not maintainable, as the impugned order was not an interlocutory order but a final order in itself. The court noted that the question of custody of the minor child can never be finally decided due to change in circumstances, and that Section 38 of the Special Marriage Act itself mentions that the aggrieved party may file an application for variation or modification of the order even after passing of the decree.
Final Decision: The court allowed the appeal and modified the impugned order to the extent that the child would ordinarily remain in the custody of the mother, but the father would have the child's company for the rest of Friday and the whole of the following Saturday. The court also directed the Trial Court to expedite the hearing of the pending suit.
Sarkar-II, J.: This appeal relates to the custody of a minor child who is aged about 7 years.
2. It is an unfortunate story of a broken house, where the husband and the wife fell apart leaving the minor into a void. We have also interviewed the minor child in the chamber in absence of either of the parties. The minor is only of tender age. Naturally, in such a situation where the parents have been acrimoniously fighting each other, the child appears to be a little confused. We have given our mature consideration to the case of the minor child. We could know through interview that even in such plight, the minor child has affection towards both her father and mother, but with a difference of degree. She appears to be tilted towards her mother. But it does not absolutely appear to us that she is averse to her father. Under such unfortunate circumstances, the worst sufferer is the child. At this stage the child requires the company and touch of personality and affection of the parents in order to shape her future career. The privation is likely to affect the mental make up of the minor child. The child has been given to the absolute custody of the mother t but the father can have the right to get the company of the child, if not regularly but from time to time. The children of the present age cannot be brought up in the incubator. They must be given a free play to observe social follow-up and to from their own judgment regarding the relationship between the good and the bad. In our considered opinion, the paramount interest of the child will be ensured more at least at this stage if she is allowed to enjoy the warmth of company of her father for a day and a half in every week.
3. In 1995 the wife filed a Matrimonial suit against the husband and that suit was numbered as Matrimonial Suit No. 18 of 1995. In that suit on consent of both the parties the learned Judge passed an order regarding the custody of the minor child. From the xerox certified copy of that order filed by the appellant-petitioner In Court, it appears that the Court below directed that the minor child shall normally remain in the custody of the wife-mother but the petitioner father will be given the custody of the minor daughter from the evening i.e. 4-30 P.M. on every Friday and the petitioner-father will return the child on each Sunday morning at 9-30 A.M. to the wife-opposite party. This order was in force, but the suit was allowed to be dismissed for non-prosecution and along with the suit, the order regarding the custody of the minor child also lost its force.
4. After sometime the parties again approached the Court for dissolution of marriage under the Special Marriage Act. The appellant-petitioner filed a petition praying for custody of the child under Section 38 of the Special Marriage Act and the learned District Judge without giving any chance of elaborate bearing disposed of the matter in favour of the wife-respondent and that the custody of the child was absolutely given to the wife.
5. On being aggrieved by such order the bus band• appellant has come with this Appeal before this Court. Along with this Appeal, the learned Advocate for the appellant being in confusion has filed also an application under Section 115 of the Code of Civil Procedure, with the prayer in the alternative to treat such petition as an application related to the matrimonial matter.
6. A preliminary question that has been agitated before us is that whether against the impugned order of custody of the child the appeal lies or a revision should lies or the petition be treated as an application filed relating to the matrimonial matter.
7. Therefore, three matters are before us. Firstly, the first Miscellaneous Appeal being F.M.A., secondly, the application under Section 115 C.P.C. and thirdly, in the alternative, an application related to the matrimonial matter.
8. At the outset it is to be noted that this Division Bench has the jurisdiction to entertain the first Miscellaneous App
