INDRANI BASU (GHOSH) Vs. DEBANGSHU GHOSH

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India filed by the petitioner challenging the impugned order being No. 13 dated 1st December, 2018 passed by the learned District Judge, Murshidabad in Matrimonial Suit No. 211 of 2017. Notice was served upon the opposite party, the opposite party was represented before this Court by engaging his advocate Mr. Sounak Bhattacharya. Thereafter, the said learned advocate for the opposite party submitted before the Court that he had no instruction from his client to conduct the present application on behalf of the opposite party. As such, the petitioner was directed to communicate the date of hearing of the application to the opposite party and to file affidavit-of-service. On 15/07/2019 when the matter was taken up for hearing, the petitioner filed affidavit-of-service and none appeared on behalf of the opposite party. As such, the application was taken up for hearing. Heard the submissions advanced by the Learned Advocate for the petitioner. Petitioner's case in brief is the present petitioner being the wife of the present opposite party No. 2 initiated one matrimonial suit being No. 211 of 2017 before the Court of learned District Judge, Murshidabad under Section 27(d) of the Special Marriage Act, 1954 praying for a decree of dissolution of her marriage with the present opposite party. In her application for divorce, the petitioner stated that her marriage was solemnized with the present opposite party on 20th April, 2006. One girl child was born out of the wedlock of the parties. From the materials on record, it appears that the relationship between the petitioner and her husband was not happy one. The petitioner left her matrimonial home with her daughter. From the submission made by learned advocate appearing for the petitioner as well as the materials placed on record, it appears that the daughter of the petitioner and the opposite party is minor and she is now staying with her mother. During the pendency of matrimonial suit, the opposite party filed an application under Section 38 of the Special Marriage Act, praying for custody of the minor daughter.

(2.) The learned Judge after giving opportunity of being heard to both the parties was pleased to dispose of the said application after passing the following direction:- "Petitioner/husband herein shall have liberty to meet the child on every 2nd and 4th Sunday in between 4 p.m. to 6 p.m. in any park lying at the locality of Belghoria where the child lives now and it is also directed that O.P./wife shall not stand in the way in free mixing of the child with her father and father shall be free to give any sort of gift of the child as per her choice and O.P./wife is directed to secure so that the child can meet her father in a most dignified, congenial and happy atmosphere. Parties are given liberty to approach this court in case of arising of any difficulty in carrying out this order and also for modification, if they are so advised. With these observation and order, the petition U/s. 38 of the Act of 1954 is thus disposed of, however, without any order as to the costs." The father of the child has been granted the right of visitation of the minor child twice in a month. The order of granting the right of visitation of the chid to her father is under challenge.

(3.) The impugned order has been assailed by the learned advocate appearing for the petitioner that the child was subjected to physical and mental torture by the opposite party while she was staying with her parents. It has been contended on behalf of the petitioner that the petitioner was compelled to bring criminal case action against the opposite party for torturing the minor daughter under various Sections of Indian Penal Code as well as under various provisions of Protection of Children from Sexual Offences Act. It is the specific contention of the petitioner that the interest of the child would be highly prejudiced if the opposite party is given right of visitation to his daughter. In support of his contention, the learned advocate for the petitioner has drawn the attention of the Court to the following portion of the impugned order passed by the learned District Judge, Murshidabad:- "This court has interacted with the child concerned in its chamber and at the time of interaction, to test her maturity, she was asked a question say 'who am I', she answered smartly saying 'you are a judge' and then she stated that now, she lives in her aunt's house and she reads in Class -III in St. Xavier School which is located at Panihati, Sodpur and she stated that her father assaulted her on several occasions and on one occasion, she assaulted in such a cruel manner, she suffered bleeding injury on his back and on one occasion, she was dragged to their roof and she suffered serious injuries on her hands and legs and blood oozed out from her wounds and then, she took out some photographs and placed before the P.O. wherefrom, it appeared that there were marks of wounds on her legs. She stated that she does not want to stay with her father and even she does not want to meet with him." Learned Advocate for the petitioner has contended that in the impugned order the behaviour of the father towards the child has been reflected and the child herself stated before the Learned Judge how she had been physically abused by her father while she was staying with him.