Suman Mondal vs Priyanka Mondal
2021 Latest Caselaw 326 Cal

                   IN THE HIGH COURT AT CALCUTTA

                    CIVIL APPELLATE JURISDICTION

                               APPELLATE SIDE

Present:

The Hon'ble JUSTICE ARINDAM SINHA
     And
The Hon'ble JUSTICE SUVRA GHOSH


                             F.M.A.T. 131 OF 2020

                                    WITH

           I.A. NO. CAN 1 OF 2020 (OLD CAN 1744 OF 2020)

                                Suman Mondal

                                   Versus

                               Priyanka Mondal

      For the Appellant :            Mr. Debasis Sur, Adv.
                                     Mr. Suman Dey, Adv.,



      For the Respondent:            Mr. J.N. Manna, Adv.

     Heard on            :           18th January, 2021

     Judgment on         :           20th January, 2021


SUVRA GHOSH, J. :-

1. The appellant is aggrieved by order dated 28-01-2020 passed by the

Learned District Judge Purba Medinipur, in case no. 23 of 2016 under

Section 10 of the Guardians and Wards Act, 1890.

2. The fact, in a nutshell, is that the appellant and the respondent are

parents of a six year old girl child and we are informed that their marriage

was dissolved by a decree of divorce on mutual consent under section

13(B) of the Hindu Marriage Act, 1955 on 16-08-2018. The

appellant/father prayed for custody of the minor daughter under section

10 of the Act of 1890 before the Learned Trial Court and was granted

permission to visit the child periodically under section 12 of the Act. In

course of proceedings under the Act of 1890, the appellant filed an

application before the trial court under section 151 of the Code of Civil

Procedure praying for allowing him to admit his daughter in a Public

English medium institution at his own cost for the purpose of overall

development and welfare of the child. The said application was

considered and rejected by the Learned Trial Court upon hearing both the

parties by the order impugned with an observation that the appellant/

father did not disclose the name and particulars of the school where he

intended to admit the child and also that nothing was produced by the

father to substantiate his contention.

3. The operative part of the order impugned is set out:-

"It is, thus,

Ordered

that the petition under section 151 of Code of Civil

Procedure as filed by the petitioner-father on 27-01-

2020 stands hereby rejected on contest with cost of

Rs. 5,000/- which is to be deposited by the

petitioner-father by 06-02-2020 with the Secretary,

District Legal Services Authority, Purba Medinipur.

It is made clear that in the event such cost is not

deposited, the visitation order as passed in favour

of the present petitioner-father will remain stayed

sine die....."

4. The appellant who is aggrieved by the said order has submitted that the

child is deprived of proper care and education in the custody of the

respondent and ought to be admitted in a good school under care and

supervision of the appellant during her tender years to ensure optimum

welfare and development of the child.

5. We notice that the contention of the appellant in the application under

section 151 of the Code of Civil Procedure was that he intended to admit

his daughter to Apex Academy to pursue her academic career. It has

been rightly observed by the Learned Trial Court in the order impugned

that no particular of the said school was disclosed by the appellant/

father who also produced no evidence in support of his contention that

the child was deprived of proper education in the custody of her mother.

We find no perversity in the said observation of the Learned Court in

rejecting the application.

6. However, the default clause stating that in the event the cost imposed

upon the appellant to the tune of Rs. 5,000/- was not deposited, the

visitation order granted to him would remain stayed sine die, cannot be

sustained for the simple reason that the application in question was filed

with regard to proposed admission of the child to an English medium

school by the appellant at his own expense. The application has nothing

to do with the right of visitation granted by the Court in favour of the

appellant by an earlier order. The trial court, in disposing of the

application under section 151 of the Code had no authority to travel

beyond the relief sought to be prayed in the petition itself as allowing the

said prayer or otherwise had no nexus whatsoever with the prayer for

visitation allowed by a separate order earlier. Such portion of the order

impugned requires to be deleted/set aside. The order granting visitation

right remaining unchallenged, the Court can under no circumstances suo

motu turn around and modify/cancel the said order in course of disposal

of a prayer completely distinguishable from the earlier one.

7. Order dated 28-01-2020 passed by the Learned District Judge, Purba

Medinipur, in case no. 23 of 2016 be modified to the extent that the

portion of the order "It is made clear that in the event such cost is not

deposited the visitation order as passed in favour of the present

petitioner-father will remain stayed sine die." be set aside.

8. The remaining portion of the order is confirmed.

9. The appellant is directed to deposit the cost of Rs. 5,000/- as directed by

the order impugned within two weeks from this date failing which legal

consequences will follow.

10. F.M.A.T. 131 of 2020 is disposed of accordingly.

11. I.A. No. CAN 1 of 2020 (Old CAN 1744 of 2020) is also disposed of.

12. There will be no order as to costs.

13. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.

(Arindam Sinha, J.)

(Suvra Ghosh, J.)