Decided on June 13,1996


Referred Judgements :-



S.Narayan, J. - (1.)This appeal by the mother-appellant is directed against an order dated 21.8.1995 passed under Section 26 of the Hindu Marriage Act by the Second Additional District and Sessions Judge, Barasat in Matrimonial Case No. 31 of 1994 whereby, the husband-petitioner's prayers for custody of a minor son in his favour was allowed and the mother-respondent was simply permitted to see tine son at the residence of the petitioner. The order was passed in presence of both the parties but after hearing only the learned Lawyer for the husband-petitioner. The mother had filed two separate petitions to defer the hearing on he grounds that fresh copy of the application for custody be made over to her an i also that it was not possible for her to file petition until and unless the passing of an order on a petition filed by her under Section 24 of the Hindu Marriage Act then pending. Since both these petitions were rejected, no argument could be advanced on behalf of the mother and the prayer of the father-petitioner was heard almost ex-parte but of course in presence of both the sides and was disposed of by the impugned order.
(2.)The facts giving rise to the present appeal are these. The marriage between the parties was solemnised on 18.6.1984 according to the Hindu rites and customs. A male child was born, now named, Sriman Raja Banerjee out of the said wedlock on 29.5.1985. Though the petitioner belonged to a place situated under Police Station Belghoria, Distt. South 24 Parganas, Calcutta-56, he was working as a librar- ian in the Central Government School at Namsai, Arunachal Pradesh. The paternal home of the appellant also situated within the Police Station Belghoria, Distt. 24 Parganas, Calcutta-56. There used to occur some differences between the parties but time to time those were amicably settled. Some time in the early part of the yea r 1992, the appellant alongwith her son, Raja Banerjee had gone to live with her husband i.e. the respondent at Arunachal Pradesh, but there again occurred some difference between them with the result that she (the appellant) wrote some letters to her mother and, thereupon, a complaint case bearing No. C/431/92 under Sections 342/498A and 506 of the I.P.C. was filed by the appellant's mother. A search warrant was issued in the case; and on the strength of that search warrant, the appellant alongwith her son was recovered at Arunachal Pradesh on 29.3.1992 and, thereupon, by the order of the Magistrate, the child, Raja Banerjee was then handed over to the custody of the appellant's mother upon her executing a bond of Rs. 1,000/-. Since, thereafter, the appellant alongwith her son, Raja Banerjee, was living at her parental home with her mother. The appellant filed a case for maintenance for herself and for her minor son under Section 125 of the Cr. P.C. which was numbered as Case No. M/133/92 and there was an order passed on 29.4.1995 allowing maintenance of Rs. 500/- per month for the appellant and Rs. 400/-per month for the minor son. During the pendency of the case for the main- tenance, the husband-respondent filed a matrimonial suit bearing No. 356/94 before the District Judge at Barasat under Section 13(l)(i)(ia)(ib) of the Hindu Marriage Act, praying for a decree of divorce. The said suit was ultimately trans- ferred to the Additional District Judge at Barasat and has been re-numbered as Matrimonial Suit No. 31 of 1984. In this suit, the husband-respondent filed an application praying for the custody of the minor son and, accordingly, the impugned order was passed in his favour.
(3.)Though the appellant did not file any written objection to her husband's petition for custody of the child, it was stated to be as such for the simple reason that her prayer for a fresh copy of the said petition was refused. It was also submitted there on her behalf that for want of no order for maintenance then passed under Section 24 of Hindu Marriage Act, it was not possible to file a written objection. In view of this aspect of the case it was, casually proposed before this Court to direct the Trial Court to pass a fresh order after affording opportunity to the appellant to file written objection and upon hearing the learned Counsel on her behalf, but we have preferred to hear both the parties and to dispose of the matter on merits on the basis of the materials, which we have found to be sufficient to take a decision in the matter.

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