MIRA BOSE Vs. SANTOSH KUMAR BOSE

JUDGEMENT

(1.) The propriety of an Order refusing to adjourn a proceeding for judicial separation under Section 10 of the Hindu Marriage Act is challenged by the wife by preferring an appeal from the said order and also by filing a revisional application in the alternative in case it was found that the appeal was not maintainable. The petition under Section 10 was made by the wife and it was she who had asked for adjournment of her suit arising on that petition. The facts in the background leading to the prayer for adjournment which was rejected are as follows:-- Appellant Mira Bose was married to the respondent Santosh Kumar Bose on July 7, 1965. Two male children were born of this marriage on February 15, 1967 and April 11, 1968 respectively. On November 22, 1968 she left the matrimonial home leaving the children behind; according to the husband she left of her own accord, her case is that she was compelled to leave. On May 3, 1969 she filed the petition under section 10 of the Hindu Marriage Act in the City Civil Court at Calcutta for judicial separation. On May 7, 1969 she applied under section 26 of the said Act for interim custody of the children and by order No. 26 passed on September 23, 1969 a learned Judge of the City Civil Court directed the husband to deliver custody of the Children to the mother. The husband took an appeal to this Court from the aforesaid order dated September 23, 1969 which was summarily dismissed. An application made by the husband for leave to appeal to the Supreme Court against the order summarily dismissing his appeal was rejected on March 12, 1970. The husband then made an application before the Supreme Court for special leave to appeal against the order of this Court which was also rejected by the Supreme Court. By order No. 87 dated July 25, 1970 the City Civil Court directed the husband to produce the children in Court on August 1, 1970 to be made over to their mother. On August 1, 1970 he made an application stating that it would not be possible to produce the children in Court and asked for reconsideration of the said order dated July 25, 1970. This application was rejected. On January 28, 1971 the wife applied for execution of the order No. 26 dated September 23, 1969 directing the husband to deliver custody of the children to their mother. On the application of the wife the High Court on April 7, 1971 also issued a Rule calling upon the husband to show cause why he should not be punished for contempt of Court for violation of the aforesaid orders dated September 23, 1969 and July 25, 1970. The matrimonial proceeding was fixed for hearing in the City Civil Court on July 30, 1971. On July 21, 1971 the wife made an application to the learned Judge, Third Bench, City Civil Court that "for non-compliance of your Honour's said interim order for custody of children the respondent should not be allowed to be heard in the main suit and his defence in the above suit should be struck out", and further that "if the respondent is given an opportunity of being heard in the above suit and the case is finally heard then your Honour's said interim order for custody of children will have no effect and the same will be infructuous" and praying that in these circumstances "the hearing date of the above suit should be shifted at least for two months thereby enabling your petitioner to get yowr Honour's said interim order for custody of children executed." By order No. 114 passed on July 21, 1971 the Court below rejected this application on the ground that there was no sufficient ground for adjourning the hearing of the suit. It is the correctness of this order which is in question.

(2.) We do not think that an appeal lies from the impugned order. Section 28 of the Hindu Marriage Act, 1955 makes all decrees and orders made "in any proceeding under this Act" appealable. Construing the section in Anita Karmokar v. Birendra Karmokar. Banerjee, J. observed "I read the expression 'orders' in Section 28 of the Act to mean orders passed under the Act, namely, orders contemplated by Sections 24, 25 and 26 of the Act. Orders which are not passed under the Act but are merely interlocutory or routine orders, passed under the Civil Procedure Code, are not and do not come within the language of Section 28 of the Act". We respectfully agree with this view. The order complained of in this case rejecting the prayer for stay of hearing of the suit is certainly not an order passed "under the Act" and is, therefore, not appealable. The appeal is accordingly dismissed as not maintainable.

(3.) We now turn to the revisional application to see whether the impugned order calls for interference. It is clear from the facts of the case that the respondent was setting the Court at defiance and was treating the orders of the Court giving the custody of the children to the wife as not worthy of notice. Of course the Rule for contempt issued on the respondent on April 7, 1971 has since been discharged on the finding that the respondent's intention "was not to flout the orders of the Court as such but to press for the proper procedure to be followed in enforcing such orders in view of the provisions of Section 28 [Hindu Marriage Act] providing for execution of such orders". The fact however remains that the respondent has not yet carried out the order directing him to make over the custody of the children to their mother and if the suit is heard before the order is either complied with or executed, the respondent would be successful in avoiding the interim arrangement made by the Court regarding the custody of the children. No Court can allow a party to the action to defy its order and to take the law into his own hands. The appellant before us sought to have the suit adjourned for two months expecting that she would be able to execute the order for custody in the meantime. Not only it was natural for the appellant to insist on her right to have interim custody of the children, the Court below in our view, would have been justified in the circumstances of the case in giving the appellant some time to execute the order before taking up the suit for hearing. We are of opinion that the learned Judge was wrong in disallowing the prayer for adjournment without adverting to all the relevant circumstances of the case.