SANJIB SAHA Vs. BIDISHA SAHA NEE ROY

JUDGEMENT

(1.) Both the matters are taken up for hearing as application being GA No. 3152 of 2005 is off-shoot of the original proceedings being AGWA No. 3 of 2005. The parties hereto were husband and wife at one point of time. They were married on 26th April, 1993. There has been no issue, except a girl child Shrabasti Saha of their above marriage. However, the marriage did not survive for long and it ended with a decree of dissolution dated 10th March, 2003 on their joint petition filed on 2nd September, 2002. In the joint petition there were various terms and conditions, apart from mutual intention to severe their marriage tie. The above order for dissolution of marriage was passed under Section 28 of the Special Marriage Act, 1954, by the learned Additional District Judge at Barasat accepting their terms and conditions mentioned in their joint petition. The parties thereto and herein, agreed as far as custody and maintenance of the said girl child who is now 8 years old are concerned, as follows : (a) The child Shrabasti Saha shall remain in the custody and care of her mother, the petitioner No. 2 and the said petitioner No. 2 shall take all steps to get the child admitted in a good school and shall look after the welfare, well being, health and education of the child and towards her proper nourishment. The parties have agreed further that all major decisions for the schooling, extra-curricular training, major medical issues, etc. concerning Shrabasti will be jointly discussed, as far as practicable, and whenever appropriate and found feasible, prior to final decision taken and executed by the petitioner No. 2. It is however made clear that in case of disagreement over any matter concerning the child the petitioner No. 2 mother shall take final decision. (b) The father of the child, the petitioner No. 1 will have the right to see and/or meet the child at her residence as and when required subject to the convenience of the child and her custodian mother, the petitioner No.2. (c) The parties have agreed further that the petitioner No. 1 that is to say the father of the child Shrabasti shall have full time access to Shrabasti for a quarter of her time, that is to say if the petitioner No. 1 is in the same city as that of Shrabasti, the father will be entitled to keep the child with him at the weekend of every week or one day plus half of the period of long vacation however without disturbing the academic schedule and other preoccupied matter touching the well-being of the child and with the consent of the petitioner No. 2. (d) The petitioner No. 1 agrees to return the child to her mother after meeting in the manner as aforesaid, on the agreed date and without causing any inconvenience to the child.That the petitioner No. 1 has agreed and undertakes to relinquish all his interest in the flat situated at 102 Ashirvad Apartments, 328, Canal Street, under police Station : Lake Town, Kolkata-700048, in favour of the petitioner No. 2 by executing proper deeds in her favour at his cost well before the date of hearing this application and the petitioner No. 2 will continue to own the said flat as full owner thereof. (a) A sum of Indian Rupees fifty-five Lakhs (US Dollar one Lakh Ten Thousand) will be paid by the petitioner No. 1 Sanjib Saha to the petitioner No.2 Bidisha Saha as full and final settlement of all her claims towards spouse maintenance, child support and child care. Out of the said sum of Rupees fifty-five Lakhs (US Dollar One lakh Ten Thousand), the petitioner No. 1 will pay to the petitioner No. 2 a sum of Rupees Forty Lakhs ((US Dollar Eighty Thousand) on or before signing of this petition by transferring the amount to Bank Account of the petitioner No. 2, the balance sum of Rupees Fifteen Lakhs US Dollar Thirty thousand) will be paid to the petitioner No. 2 by the petitioner No. 1, on the date when the case will be heard, which sum the petitioner No. will be holding for the benefit of the child till such time she attains majority and the petitioner No. 2 shall have the liberty to keep the said sum invested by her as she may think proper and beneficial to the child and the interest and/or dividend derived from the said sum will be utilized towards the educational expenses as also towards the maintenance of the child Shrabasti Saha."

(2.) Admittedly the applicant herein Sanjib handed over the custody of the said child to the petitioner No. 2 who has now re-married with another gentleman and started her new life. It is also told that both the parties severed relationship, but attachment of both the persons of their only issue Shrabasti is obviously there and must be there in ordinary circumstances and naturally Sanjib has duly honoured all commitments in terms of the aforesaid consent decree. By this application Sanjib complains that he had no opportunity to interact with the child in person after departure of the respondent from USA. He could briefly interact with the child during March 2003 when the mutual divorce petition was filed by the parties. Despite repeated effort no effective meeting could take place between Sanjib, father and the said child except on one occasion for a few minutes that too through intervention of the Court in September 2003 when Sanjib made an application before the learned District Judge Barasat who passed the aforesaid consent decree to enforce above terms of settlement regarding access to the child in 2003. It is alleged that series of letters were written by the petitioner requesting the respondent No. 2 to allow him to interact and talk over telephone or to meet, but he was denied such right, which emanates from the aforesaid consent decree. Whenever he cornes down to India from States to see the daughter and wants to remain with her in terms of the aforesaid consent decree but the respondent foils such effort by taking away the girl from the residential house of the mother of the respondent. In May 2004 when Sanjib came again to India upon prior intimation to the mother of the child for the periodic visit and again he was denied access and as such he could not meet the girl. He approached Court, at the first instance the Id. Judge passed order which did not help the petitioner, as such he came to this Court in Civil Revisional Jurisdiction against the order of Id. Trial Judge. The Hon'ble Mr. Justice G. C. Gupta gave specific direction upon the learned District Judge to bring about a meeting between the petitioner and the said girl child. However, the effort in terms of the order of revisional Court was not successful as on taking into consideration of the girl's mind and wishes it revealed that the girl was not inclined to meet or see or to remain with her father. As a result the aforesaid right in terms of the consent decree could not be effectually enforced and this according to the petitioner could happen because of the persistent and constant adverse influence created in the mind of the child to develop antipathy towards the father. The respondent falsely cultivated in the mind of the girl to the effect in the event petitioner meets her she would be forcibly taken away and she would be beaten up, etc. etc. The petitioner is concerned seriously with the welfare of the child and her long-term mental, moral and physical development. He feels her welfare is in jeopardy. Despite the agreed terms Sanjib has not been furnished with any intimation regarding education, all care of the said daughter. Very recently Sanjib came to learn that the said flat has been sold at an undisclosed price. The fund earmarked for the child's education has not been invested or spent in a proper manner.

(3.) Having heard the learned counsel for the parties and examined the materials placed before me the issues involved in this case are as follows. Whether the order passed on joint petition by the learned District Judge of 24 Paragans at Barasat in Matrimonial Suit 108/02 can be enforced and/or executed by this Court in exercise of jurisdiction under Clause 17 of the Letters Patent read with the provisions of Guardians and Wards Act. or not. If so, whether the petitioner is entitled to such relief as prayed for. No doubt the compromise decree apart from provision of the law has created right in favour of the petitioner, father. The relevant clause being clause 8(b) of the order passed on Compromise is set out hereunder: