ALOKE SARKAR Vs. ANINDITA SARKAR BASU

JUDGEMENT

(1.) The present revisional application is taken up for contest being directed against Order No. 14 dated 31 -1 -95 passed by the 13th Court of the Additional District Judge at Ali pore in Matrimonial Suit No. 15 of 1994. The revisional application is moved without annexing the certified copy of the (Sic) but an undertaking is offered that the certified copy shall be made available to this Court as the same has been applied for. The ordinary correct copy of the impugned order has been placed before me by the learned Advocate on behalf of the petitioner. By the impugned order, the Commissioner of Police is directed to recover the child born out of the marriage between the parties from Dolna Day School after meeting its Principal and send the child to the custody of the mother at her residence. As per averments contained in the revisional application, the child is now aged about 7 years and is being put up in a hostel in Dona Day School. It is further alleged that the opposite party mother left the matrimonial home on 4th April, 1992 leaving behind the child. By an order being Order No. 9 dated 26th Sept., 1994 the learned Trial Judge allowed the petition of custody of the child in favour of the opposite party. Against the said order, this Court was moved in revision and the matter was heard during the vacation and ultimately the High Court passed an order by affirming the order passed by the Trial Court. The said order was passed by the High Court in C. 0. No 1838A of 1994. Mr. Bikash Ranjan Bhattacharjee, appearing on behalf of the petitioner, being aggrieved by the impugned order being an order pursuant to which the Police Commissioner is directed to recover the child from Dona Day School in order to give effect to the High Court's aforesaid order. Mr. Bhattachrjee has first of all submitted that as the hearing of the matter commenced during the time of vacation of the High Court, the hearing could not be completed before the Puja Vacation. Mr. Bhattacharjee has referred to an order passed by the Division Bench presided over by the learned Chief Justice wherein a direction was given that the matter should be placed before the Court having proper jurisdiction to be in seisin of the matter. Mr. Bhattacharjee has submitted that if the High Court during the vacation takes up the matter for hearing, either it must complete the hearing during the continuance of the vacation but it cannot keep it part-heard and deliver the judgment and proceed with the hearing long after the reopening of the Court as the Regular Bench is only authorised to take up such matter. According to Mr. Bhattacharjee, Vacation Judge means a Judge who sits during the vacation for hearing of applications of immediate or emergent nature and he referred to Aiyar's Judicial Dictionary, 11th Edition, Page 1151. Mr. Bhattacharjee has submitted that the decision of the Vacation Bench after the expiry of the vacation and continuation of the hearing makes the hearing vitiated for want of jurisdiction and, as such, the judgment of the High Court sought to be enforced is a judgment in nullity. Mr. Bhattacharjee in support of his contention has referred to a reported decision of the Division Bench of this Court in AIR 1990 Calcutta 146. Mr. Bhattacharjee has further submitted that the learned Judge in the detailed order arising out of the contentious issues of custody has only allowed himself to be swayed under subjective impression by holding that the child is a tutor child. According to Mr. Bhattacharjee, the order was not passed keeping in view the welfare of the child. It has been further submitted that against the said order a Special Leave Petition has already been preferred before the Supreme Court of India and no execution proceeding in whatever manner can be taken out during tho pendency of the Special Leave Petition before the Supreme Court of India. In this Context, Mr. Bhattacharjee has referred to a decision reported in 1994 AIR SCW 460 in the case of Modern Food Industries (India) Ltd. Vs. Sachchinda Das.

(2.) Bet that as it may, this Court is conscious of its limitation and it is not sitting either in appeal or in revision to an order passed by this High Court in coordinate jurisdiction and when the said order is under challenge before the Honourable Supreme Court, therefore, it is not open for this Court either to scrutinise or to consider the contentions of Mr. Bhattacharjee.

(3.) For the present, this Court is only concerned with the impugned order being Order No. 14 dated 31-1-95 passed by the learned Trial Judge in terms of which the Commissioner of Police is directed to recover the child in order to complete the enforcement of the order and in order to achieve that Sec. 151 of the Code of Civil Procedure has been pressed into service. There are certain annexures appended to the present revisional application from which it appears that on an earlier occasion when direction was passed to hand over the child to the mother/opposite party, the child resisted. A report was also submitted by the Officer-in-Charge of Narkeldanga Police Station and it was mentioned therein that the ward tried to evade the police personnel. Thereafter, he was taken to a taxi being accompanied by one of the uncles so that the child might reach the destination of the mother and the child was found in torments and the child also wanted to jump out from the running vehicle. The child fell seriously ill on his way leading to the destination and he, was required to be taken to B. R. Singh Hospital and he was admitted in the Children's Ward in Bed No. Extra 3 of the hospital. He was placed under the care and attention of one Dr. Tarun Chowdhury and he was there for a period of seven days till his recovery. The same was followed up by issuance of a Rule of Contempt of the learned Single Judge and after consideration of the report the Court cannot desire that the child should be sent back to the mother after recovery from his spate of illness. Against the order passed in contempt proceeding an appeal was taken out being F.M.A.T. No. 3447 of 1994 and the Appeal Bench held by an order dated 9-11-94 that it was just and proper for the welfare of the child that the parents should live together and keep the child comfortable and provide the best of education possible. The Court disposed of the appeal on the said finding. Thereafter, there was a contested proceeding and a detailed order was passed by a Single Judge of this High Court and the same order was attempted to be implemented by this Court, the Trial Court's order is the subject-matter of challenge and the said impugned order appears to have been passed on a petition under Sec. 151 of the Code of Civil Procedure. It is well-known that remedy under Sec. 151 C.P.C. is made available only when there is no other alternative provision provided either in the Code or under the special statute. The learned Advocate on behalf of the petitioner has drawn the attention of this Court to the provisions of Order 21 Rules 32 and 33 C.P.C. and he has contended that the said Rules only provide for enforcement of decrees for restitution of conjugal rights and not a decree or order for custody either permanent or interim. Sec. 28A of the Hindu Marriage Act provides that all decrees and orders should be enforced like that of a decree. The Court is not oblivious of the fact that the parties to the marriage are governed in their personal law by operation of the Hindu Law. Hindu Minority and Guardianship Act applies in the instant case in view of the personal law of the parties and Sec. 2 thereof contemplates that it shall be an aid to Guardians and Wards Act. Reference may be made in this context to Sec. 43 of the Guardians and Wards Act which postulates orders for regulating conduct or proceedings of guardians and enforcement of those orders. Sec. 43(4) specifically provides the mode for enforcement of such order including an order for custody. Sec. 45 of the Guardians and Wards Act provides for penalty when there is a deliberate non-compliance or contumacy about an order which is in force. There- fore, it can be opined that the self-contained parent Act being Guardians and Wards Act contemplates provisions and procedure for enforcement of an order for custody. In view of the self-contained procedure prescribed under the Guardians and Wards Act as aforesaid, it is doubtful whether the general omnibus provisions of Sec. 151 C.P.C. can be resorted to. Enforcement is a part of off-shoot to a proceeding for custody and it is well-settled that in considering the question of custody of a minor the Court has to be guided by the only consideration of the welfare of the minor. Here, in the process of enforcement of an order for custody it is apparent, as appearing from the record that the welfare of the child has been made a casualty which was made a victim of serious ailment and nervous imbalance as a result of which he was to he hospitalised for a period of seven days. After all, law is an avenue for the sake of directing the welfare of the child and the same cannot be sacrificed at the altar of the legal process and the child cannot be allowed to be made a casualty. Here it appears that the child was made a victim of the tussle between his parents and he was made a pathetic victim thereof. It is not out of context to make a reference to a decision in the case of Rosy Jacob Vs. Jacob A. Chakramakkal, reported in AIR 1973 SC 2090 and a reference may be made to paragraph 14 at Page 2100 where the apex Court has pointed out that -