Madhya Pradesh High Court
Sukant Bhattacharya vs Ishita Bhattacharya (Chakraborty) on 24 March, 2017
FA-771-2016
(SUKANT BHATTACHARYA Vs ISHITA BHATTACHARYA (CHAKRABORTY))
24-03-2017
The appellant in person.
Heard on the question of admission.
Admit.
Issue notice after admission on payment of P.F. within a week.
Record of the court below be requisitioned.
The appellant is pressing I.A. Nos. 14757/2016 for interim
direction and 4140/2017 of which notices have been issued by
this court to the respondent.
Apparently the notice has been served on the respondent but nobody appears on behalf of the respondent. This is evident from the track Consignment available on the site of India Post which has been placed before this court by the appellant as well as the fact that the respondent has sent a letter to this court on 09.12.2016. As inspite of notice nobody appears on behalf of the respondent to contest I.A. No. 14757/2016 inspite of being given repeated opportunities, the aforesaid I.A. is taken up for ad-interm orders on the insistence of the appellant who has also filed an I.A. No. 4140/2017 praying for a direction that he may be permitted to bring the Child Sumedha to Jabalpur for staying with him during the session break and summer vacations.
The aforesaid interim relief is prayed for by the appellant on the basis of the contention that there were several rival cases filed by the parties against each other, however, during the pendency of the same the parties had entered into a compromise and mutual settlement out of the court in which the parties had agreed to obtain divorce by mutual consent and also that while guardianship of the child Sumedha would remain with the appellant/father being the natural guardian, however, as a temporary arrangement the respondent/mother shall have temporary physical custody of the child subject to the condition that the Child Sumedha would spend all her vacations with the appellant as well as Pooja celebration and for that purpose both of them would meet at any mutually agreeable place to hand over the child to avoid any future dispute and that the parties shall not change their residence without prior information. It had also been agreed between the parties that neither of then shall shift the child to any other country without the written consent of the other party. It had also been agreed between the parties that while the child was staying with the appellant the relatives of the respondent would also be at liberty to visit the child and that the child will celebrate her birthday alternately one year at Jabalpur and other at Kolkata which may be attended by the other parties also. The parties had also agreed that they shall not prejudice the mind of the child against each other and shall ensure that she maintains a healthy interaction with both the parties. It has also been agreed that in case of any such violation or the respondent no. 2 being unable to bear the expenses of maintaining the child, her custody shall stand automatically transfered to the appellant. The parties have also agreed that during the interim arrangement the appellant would be at liberty to talk with the child on phone at any point of time preferably between 05:00 PM to 10:30 PM and communicate with her. It has also been agreed between them that the name of the child shall not be changed by the respondent. On the basis of the aforesaid, the parties had also agreed to withdraw the cases filed by them against each other or ensure that the criminal cases are quashed as a condition precedent for deciding the application that had been filed mutually filed by them under section 13-B of the Hindu Marriage Act. It is submitted that a detailed compromise had been entered into between the parties pursuant to which the appellant had permitted the respondent to take the child to Kolkata and had also withdrawn the cases that he had filed against her but at the time when the matter came up before the court below for orders on the application under section 13-B of the H.M. Act for divorce by mutual consent the respondent did not appear or communicate with the court or the appellant as a result of which the application suffered dismissal against which the present appeal has been filed which has been admitted by this court.
It is submitted that in the circumstances the respondent has played fraud with the court as well as the appellant and has also not responded to the notice issued by this court or appeared by filing a reply before this court therefore, as an interim measure it be directed that the child Sumedha shall spend the summer vacation with the appellant and for that purpose the respondent should hand over the child to the appellant.
We have heard the appellant at length and perused the documents as well as the written communication sent by the respondent to this court.
We are of the considered opinion that as an interim measure the prayer made by the appellant for directing the child Sumedha to spend the session break and summer vacation with the appellant deserves to be allowed. It is accordingly ordered that the respondent shall hand over the child Sumedha to the appellant for that purpose.
For the aforesaid purpose the appellant is permitted to approach the respondent and on his doing so, the respondent shall comply with the interim directions issued by this court and shall hand over the child Sumedha to the appellant. It is made clear that the appellant shall ensure that the child reaches back to Kolkata before the session break is over and thereafter the respondent shall again hand over the child Sumedha to the appellant on the commencement of the summer vacation.
It is further directed that the Director General of Police, West Bengal and the Commissioner of the Police, Kolkata as well as the local police of the place concerned shall take all necessary steps to ensure peaceful compliance of this order and in addition also ensure that in case the appellant approaches the local police at Kolkata for assistance, the necessary police force is provided to him so as to implement the interim order passed by this court as well as ensure that no untoward incident may occur as it is the intent of the court that parties should comply with the order passed by this court peacefully. A copy of this order passed today be sent to the Director General of Police, M.P. and Director General of Police, West Bengal as well as the Commissioner of Police, West Bengal forthwith for necessary information and compliance. C.C. today.
(RAVI SHANKAR JHA) (ASHOK KUMAR JOSHI)
JUDGE JUDGE
MSP