Decided on January 06,1970

SMT. BINITA SEN Respondents


Paresh Nath Mookherjee, J. - (1.) This is an application for a Certificate for leave to appeal to the Supreme Court against our decision, dated 10th December, 1968. The application has been made under Article 133(1 )(c) of the Constitution and it is directed against an order of this Court, varying the order of the learned District Judge, in the matter of custody of the minor boy concerned in a proceeding under section 38 of the Special Marriage Act, 1954, started by the father for modification of the directions in the matter, contained in a decree for divorce, dissolving the marriage between the parents concerned.
(2.) The learned District Judge gave qualified or conditional custody to the father in preference to the mother, who had the custody under the above decree, and this Court varied the said conditions or qualifications for a limited period and gave liberty to the father, after the expiry of the said limited period, to apply to the Court below for necessary directions in the matter of the said custody for finalising the same. The chief reason, which weighed with this Court in taking the above view, was that the learned District Judge, in deciding the matter of custody, did not take into consideration the views of the minor concerned, as required under the statute (section 38 of the Special Marriage Act). Indeed, the only purpose, for which we directed a fresh application for finalising the matter of custody, was to give an opportunity to the Court below to act in accordance with law to decide the said question after taking into consideration the wishes of the minor concerned in terms of the relevant statute. Our order, however, has not satisfied the father, and he is seeking to take the matter higher up for restoration of the order of the learned District Judge.
(3.) The application, as we have said above, is one under Article 133(I)(c) of the Constitution and the three grounds, which have been urged in support of it,%e as follows:- 1) That as the judgment of this Court is a judgment of reversal, Certificate for leave should be given ; 2) That, as the case involves an interpretation of section 38 of the Special Marriage Act, the test under the said clause is immediately satisfied and the Certificate should follow as a matter of course ; and 3) That, as the point involved raises consideration of the extent and limit of the father's right of custody, it is one of great general importance, both private and public, so as to satisfy the requirement for a Certificate under the aforesaid clause and, accordingly, the same should be granted.;

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