ARKAPRAVO DAS Vs. MADHUPARNA DAS

JUDGEMENT

(1.) This revisional application under Art. 227 of the Constitution of India is directed against the order dated June 20, 2015 passed by the learned 15th Additional District Judge at Alipore, South 24-Parganas in Matrimonial Suit No. 07 of 2015 (originally numbered as MAT Suit No. 109 of 2013), in so far as the same rejected the application filed by the petitioner husband under section 151 of the Code of Civil Procedure (in short "the Code") for enforcement of an order allowing him to avail temporary custody of the minor son for half of the Summer Vacation, Puja holidays, Kali Puja, Bhatriditiya, Winter Vacation.

(2.) The short question that falls for consideration of this Court in this application is whether a party to the matrimonial suit can maintain an application under section 151 of the Code of Civil Procedure, 1908 (in short "the Code") to execute an order passed by the Court allowing him/her to visit the minor child.

(3.) The facts leading upto this revisional application may be briefly stated. The petitioner and the opposite party are the husband and wife and out of their wedlock a son was born who is still a minor. In June, 2013 the opposite party filed the aforementioned matrimonial suit, under section 27(1)(d) of the Special Marriage Act, 1954 (in short "the Act of 1954"), against the petitioner husband, before the Court of the learned 3rd Additional District Judge, Alipore, claiming a decree for dissolution of marriage which is contested by the petitioner. The minor child is in the custody of the opposite party wife and in the matrimonial suit the petitioner husband filed an application praying for permanent visitation of the minor child. In the meantime, the opposite party wife filed an application under Sec. 24 of the Code before the learned District Judge, Alipore, South 24 Parganas praying for, transfer of the matrimonial suit from the Court of the learned 3rd Additional District Judge at Alipore to any other Court at Alipore. During the pendency of the said application before the learned District Judge, by order dated May 31, 2014 the learned 3rd Additional District Judge, Alipore disposed of the application of the petitioner husband for permanent visitation of the minor child by directing that the petitioner will be entitled to avail temporary custody of the minor son for half of the Summer Vacation, Puja Holidays, Kali Puja, Bhatriditiya, Winter Vacation subject to a condition not to take the child out of Kolkata and return him back in safe custody of the opposite party after completion of the half of the holidays. By order dated Jan. 19, 2015 the learned District Judge, Alipore allowed the application filed by the opposite party wife under Sec. 24 of the Code by withdrawing the matrimonial suit from the Court of the learned 3rd Additional District Judge, Alipore and transferring the same to the Court of the learned 15th Additional District Judge at Alipore, that is, the learned Court below. Thereafter, on Feb. 19, 2015 the opposite party wife filed an application before the learned Court below praying for recalling of the above order dated May 31, 2014 passed by the learned 3rd Additional District Judge, Alipore. In view of the fact that the opposite party wife did not allow the petitioner husband to have the temporary custody of the minor son as directed by the order dated May 31, 2014 he filed an application, under Sec. 151 of the Code, before the learned Court below seeking enforcement of the said order dated May 31, 2014 by police assistance. On May 16, 2015 the learned Court below passed an order observing that the order dated May 31, 2014 is not complied with by the wife intentionally and the said order must be complied with in letter and spirit failing which, the Court shall take proper step as per law. The opposite party wife contested the application filed by the petitioner husband under Sec. 151 of the Code and she filed a further application before the learned Court below for recalling of the said order dated May 16, 2015.