ROHIT KUMAR MODWEL Vs. SUDIPA R MODWEL

JUDGEMENT

(1.) The present revisional application is directed against Order No. 2 dated 8th September, 1994 passed by the learned District Judge at Alipore in Act VIII, Case No. 245 of 1994. By the impugned order the Trial Court has issued a notice upon the opposite party, wife, directing her to produce the minor daughters before that Court on 29.9.94. The petitioner, husband, initiated a proceeding under Section 25 of the Guardians and Wards Act on the allegation that as soon, as he left his house on 28th June, 1994 for a short trip out of the city and after his return on 1st July, 1994 the petitioner found that the opposite party and his minor children absent at his residence. He subsequently came to know that his wife along with the said children went to her father's house at Siliguri. There are further allegations and/or insinuation that the opposite party, wife, had also taken away valuables from the residence at the time of departure and the further case that was made that the children born of the said marriage were reading at the material point of time in La-Martinere Girls' School in Calcutta. There was also apprehension expressed in the said proceeding that due to long absence from the School, their names might be struck off from the school register and their studies are threatened to be affected. The petitioner in the connected proceeding also made an application for interim order enabling the petitioner to have the custody of the said minor children.

(2.) The fact of the case in short can be summarised as the parties to the present proceeding were married sometime on 14th October 1984 at New Delhi according to Hindu rites and customs. After consummation of the marriage and out of the same two daughters, namely, (a) Rittika Modwel and (b) Urvee Modwel were born on 28.11.1986 and 30.9.1989 respectively. The matrimonial home of the parties were situated in the ground floor of premises No. 55/2, Ballygunge Circular Road, P.S. Ballygunge, in the city of Calcutta. The aforesaid daughters at the time of initiation of the proceeding for custody were reading in Class-II and Upper Nursery Class of La-Martinere School in Calcutta. The Children have good performance in their academic prosecution. The entire controversy is raised because of sudden displacement of the said children from the city of Calcutta to Siliguri due to the unilateral act of the opposite party and without any intimation to the petitioner and/or his consent. The apprehension expressed in the said proceeding is that the education of the children is likely to be hampered. The trial court directed production of the said children in the court below on a given date but in the meantime the petitioner alleged that he was threatened with termination of his daughters from La-Martinere School because of their long absence from their respective classes. As the learned Court below did not pass any interim order and fears were expressed that names of the children of the petitioner might be struck off from the school register and this Court was pursuaded to pass an interim order restraining the authorities of La-Martinere School from removing the names of the children born of this marriage from the school register. Thereafter the Court was made to exhaust other avenues to serve the opposite party and the opposite party was found to be avoiding service. This Court was made to direct the local police station where the opposite party resided to serve with notice even by radio message and this Court also gave direction for attendance of the said children in the month of October, 1994 to the school during the period when this Court remain closed. The opposite party moved the Vacation Judge of this Court and obtained stay of the order passed by this Court inclusive of restraint order on the authorities of La-Martinere School. After reopening of the Court the husband-petitioner made grievance of the same and this Court passed an order whereby the Principal of La-Martinere School was again restrained by an interim order from striking off the names of the aforesaid two children from the said school. The opposite party pleaded before this Court that she had no deliberate intention to circumvent the Court's order and in fact the opposite party's version was that she did not get the order. According to her, she was not available at the material point of time at her father's residence in Siliguri.

(3.) Shorn of details the gist of the justification of the opposite party was that on a certain day she took the children about 250 Kms. away in a remote Tea Garden from the school straightway where the said children are at present reading. Thereafter the opposite party came to Shantiniketan at Bolpur with her father and the said children and came to Calcutta during the vacation and moved a petition in a hurry. Lot of comments were made by Mr. Bhattacharyya, the learned Advocate appearing on behalf of the opposite party regarding the correctness of the allegations. This Court has taken note of the version of the opposite party and is not free from doubt about the opposite party's conduct or about the authenticity of the said version. This Court, however, without arriving at a decision about the correctness of the said version but by way of abundant caution warns the opposite party not to embark in this way as the same may have far reaching consequences. This Court restrains the opposite party from removing the said children during the pendency of the proceeding under Section 25 of the Guardians and Wards Act from their present place of stay without prior leave of the trial Court. The opposite party is saddled with further obligation during the pendency of the said proceeding that before removing the said children from their normal place of stay, the petitioner's father has to be informed about the proposed whereabouts of the journey of the said children and the local police station within whose jurisdiction the said children will be taken but on future the opposite party will be required to inform about their arrival and total period of stay in the proposed place of journey of the said children to the local police station. This order has been passed keeping in view the locus standi of the father as a natural guardian of the said minor children as he is also supposed to be vitally interested about the upbringing and welfare of the said children.