JOYCE MARINA JACOBS Vs. BASIL GENALD JACOBS

JUDGEMENT

(1.) This revisional application has been filed by the wife impugning an order dt. 1.10.93 passed by learned Additional District Judge, First Court, Alipore in Act 8 case No. 151 of 1993. The, husband opposite party filed a proceeding under section 25 of the Guardians and wards Act against the wife alleging inter alia that the wife on 8th May, 1993 surreptitiously left with the two children born of the wedlock and even though she at present resides at 1/1493, Pattalam Road, Fort Cochin, Erankulam, Kerala he had every apprehension that she may leave the country and go to Australia. The guardianship proceeding was claimed in respect of minor son named Jason Bernard Jacobs aged about three years four months (born on 19th February, 1990) now aged about 4 years. In his application the husband prayed inter alia for production of the minor son, Jason Bernard Jacobs so that that he might be returned to his custody, i.e., the custody of the father. On 2nd of July, 1993 the learned District Judge issued notices on the wife asking her to show cause as to why she should not be directed to hand over the minor son to the custody of her husband, i.e, the father of children, and she was further directed to produce the child in court on 19.7.1993. Since the notice not return after effecting service on her, the matter was ultimately fixed for hearing on 5.8.1993. On 26.7.1993 the opposite party moved again praying a direction upon the police so as to arrest the minor child and to deliver the said minor child to the custody of the petitioner. The application was direct to be put up for hearing on the 5th of August, 1993. On the 5th of August, 1993 there was a further direction upon the present petitioner i.e., the mother of the child to produce the child in court. On 20.8.1993 the present petitioner, i.e. mother of the child entered appearance and filed an application annexing a medical certificate explaining the reasons as to why she could not produce the child earlier. She also filed a written objection by way of a show cause as to why she wanted the dismisal of the petition under section 25 of the Guardians and Wards Act and she prayed further for vacation of the interim order as passed earlier in the proceeding. By separate application filed on that very day she filed an application for review of the earlier order praying inter alia that the order dt. 2.7.93 directing her to produce the child should be modified and/or set aside. The learned District Judge still passed an order fixing 1st of October, 1993 for production of the children thereby meaning both the children and he further directed that the proceeding should be transferred to the court of the Additional District Judge, First court, Alipore for disposal along with the pending applications. On 4th of September, 1993 when the matter was transmitted to the court of the Additional District Judge, First Court, the said court reiterated a direction to the effect that the child should be produced on 1.10.1993. On 1.10.93, however, petitions of objection were submitted by the husband opposite party to the earlier application filed by the present petitioner. The present petitioner also filed an application praying for hearing of both the pending applications filed by her. The learned Additional District Judge, First court without passing any speaking order whatsoever, rejected the application of the present petitioner for vacating the order for production of the child reiterating only "since the child is required to be produced in such case", the application stood rejected. He however, fixed 14.12.93 for hearing of the case along with other pending application and passed a further direction upon the present petitioner to produce the child positively on that day. We are given to understand that on 14.12.1993 and also on the subsequent date i.e. on 24th of January, 1994 no orders were passed by the learned Additional District Judge, First court, Alipore.

(2.) We have heard the learned Advocates for the petitioner as also for the opposite party (who has lodged a caveat in the matter). The learned counsel for the opposite party, however files no Affidavit in-opposition but submits before us that the allegations as continued in the revisional application are not submitted by his client.

(3.) We have gone through the averments in the different applications filed by the parties in the court below. Even though the allegation of the husband-opposite party is to the effect that he got an admission for the male child, Jason Bernard Jacobs in La Martiniers school at Calcutta, child being aged three plus at the relevant time and the wife left surreptitiously with all her belongings including the two children on 8th May, 1993 and he expressed an apprehension that she might be leaving for Australia for good, we do not find that the learned District Judge at the time of issuing a direction fox the production of the child, Jason Bernard Jacobs, has applied his mind at all that it would be for the welfare of the child to be produced in court even at this interim stage. We do not find any due application of mind by the learned Additional District Judge either when he directed the child to be produced in court on the different dates as would be appearant from the different orders including the order impugned dt, 1.10.1993. We do not find also the reasons which preempted the learned Additional District Judge pass the order impugned manifest from the order itself in rejecting the application dt. 20.8.93 for vacating the order for production of the child because he took for granted that the production of the child is a "must" as a precondition for the hearing of such an application even for an interim custody. We, however would set aside the order dt. 1.10.1993 in so far as the learned Additional District, First court rejected the application filed by the present petitioner on 20.8.93 for vacating the earlier order for production of the child. We would direct the learned Additional District Judge to hear out all the applications pending decision before him on merits on the next date fixed. The learned Additional Judge, however would keep in mind that the child is just aged about four years at the present moment and there is no duty cast on the court to interview of the minor child for ascertaining his wishes at the present moment prior to deciding the question of his custody and further a child aged about four, is not fit to form an interfigent preference which might be taken into consideration by the court in deciding the welfare of the child and while deciding the proceeding under section 25 of the Guardians and Wards Act, the court must take into consideration as to what should be for the welfare of the child. We would direct the trial court to decide the matter with utmost expedition in the light of our observations as indicated hereinbefore. Let a xerox copy of this order be handed over to the learned Advocate for the petitioner as also the learned Advocate for the opposite party on usual undertaking. S. N. Mallick, J.-I agree. Petition disposed of of