Calcutta High Court (Appellete Side)
Dr. Suchi Karmakar Nee Acharya vs Dr. Arnab Karmakar on 25 May, 2021
25/05/2021
Item No.6.
Court No.19.
AB
Through Video Conference
C. O. 894 of 2021
Dr. Suchi Karmakar nee Acharya
Vs
Dr. Arnab Karmakar
Mr. Sakya Sen,
Mr. Arindam Paul ...for the Petitioner.
Mr. Partha Pratim Roy,
Mr. Aniruddha Chatterjee,
Mr. Dyutiman Banerjee,
Mr. Chiranjib Sinha ...for the Opp. Party.
The mother of a child, at present aged about 5 &
½ years, has challenged an order no.13 dated March
23, 2021 passed by the learned Additional District
Judge, 6th Court at Alipore in Act VIII Case No.37 of
2020.
By the order impugned, the learned Additional
District Judge allowed the petition dated July 6, 2020
filed by the father/opposite party herein on consent
permitting the father to virtual visitation with the
minor son through WhatsApp video call from his
registered mobile number once in a week on every
Sunday in the evening for half an hour from 6 p.m. to
6.30 p.m. until further order.
2
Mr. Roy, the learned Advocate appearing for the
father/opposite party herein raised a preliminary
objection with regard to the maintainability of the
instant application under Article 227 of the
Constitution of India since the order impugned is a
consent order.
Mr. Sen, the learned Advocate appearing for the
petitioner, submits that the impugned order contains
an erroneous recording of the alleged consent on the
part of the mother.
He further contends that the petitioner herein
filed a demurrer application challenging the
maintainability of the ACT VIII case pending before the
learned Court below. He further submits that on
March 23, 2021, when the matter was heard by the
learned Presiding Officer, the petitioner herein prayed
for hearing of demurrer application first, but such
submission was also not recorded in the order
impugned.
Mr. Sen further submits that alleging erroneous
recording of the alleged consent as well as non-
recording of certain submissions advanced by the
petitioner herein before the learned Court below, the
petitioner has taken out an application under Order
47 Rule 3 read with Rule 5 of the Code of Civil
Procedure, inter alia, praying that the orders dated
March 8, 2021 and March 23, 2021 be recalled.
3
Mr. Sen further submits that the petitioner
herein also made attempts to move the said review
application by filing a put-up petition, but the same
was also not entertained by the learned Judge of the
Court below.
By referring to various medical documents
annexed to the supplementary affidavit filed before
this Court, Mr. Sen contends that the mode of
communication between the father and the child as
directed by the order impugned will have an adverse
effect on the health of the child. Mr. Sen further
submits that the welfare of the child demands that the
father should not insist for compliance of the
impugned order till further order/orders is/are being
passed by the learned Court below on the application
for review and the demurrer application filed by the
petitioner before the learned Court below. As such, he
submits that the present status quo as prevailing
immediately after passing of the order dated April 12,
2021 by this Court shall be allowed to continue till the
matter is decided by the learned Court below.
He also submits that the mother has no
objection in the event the father visits the residence of
the mother physically and exercises his visitation
rights over the child.
In reply, Mr. Roy, the learned Advocate for the
opposite party, assisted by Mr. Chatterjee, learned
4
Advocate, disputes the contention of Mr. Sen with
regard to the physical condition of the child and also
with regard to the effect of the communication between
the father and the child on the health of the child.
I have heard the learned Advocates for the
parties and have considered the materials on record.
After going through the impugned order, it
appears to this Court that the said order was passed
as per the terms and conditions mutually agreed
between the parties.
The principal dispute in the instant civil
revisional application revolves around recording of
consent by the learned Judge of the Court below.
Such dispute cannot be decided by this Court as it is
well-settled that the statement of the Judges recorded
in their judgment as to what transpired in the Court
below is sacrosanct. In this regard, it would be
profitable to refer to a decision of the Hon'ble Supreme
Court of India in the case of State of Maharashtra
Vs Ramdas Shrinivas Nayak & Anr. reported at
(1982) Vol.2 SCC 463. The Hon'ble Supreme Court
held thus -
"para 4.............We are bound to accept the
statement of the Judges recorded in their judgment,
as to what transpired in court. We cannot allow the
statement of the Judges to be contradicted by
statements at the Bar or by affidavit and other
evidence. If the Judges say in their judgment that
5
something was done, said or admitted before them,
that has to be the last word on the subject. The
principle is well settled that statements of fact as to
what transpired at the hearing, recorded in the
judgment of the court, are conclusive of the facts so
stated and no one can contradict such statements by
affidavit or other evidence. If a party thinks that the
happenings in court have been wrongly recorded in a
judgment, it is incumbent upon the party, while the
matter is still fresh in the minds of the Judges, to call
the attention of the very Judges who have made the
record to the fact that the statement made with
regard to his conduct was a statement that had been
made in error. That is the only way to have the
record corrected. If no such step is taken, the matter
must necessarily end there. Of course a party may
resile and an appellate court may permit him in rare
and appropriate cases to resile from a concession on
the ground that the concession was made on a wrong
appreciation of the law and had led to gross
injustice ; but, he may not call in question the very
fact of making the concession as recorded in the
judgment.
5. In R v. Mellor Martin, B. was reported to have said:
"We must consider the statement of the learned Judge
as absolute verity and we ought to take his statement
precisely as a record and act on it in the same
manner as on a record of Court which of itself implies
an absolute verity."
6. In King Emperor v. Barendra Kumar Ghose Page, J.
said:
".....these proceedings emphasise the importance of
rigidly maintaining the rule that a statement by a
learned Judge as to what took place during the
course of a trial before him is final and decisive : It is
not to be criticized or circumvented ; much less is it to
be exposed to animadversion."
7. In Sarat Chandra Maiti v. Bibhabati Devi Sir Asutosh
Mookerjee explained what had to be done :
".........It is plain that in cases of this character where
a litigant feels aggrieved by the statement in a
judgment that an admission has been made, the most
convenient and satisfactory course to follow,
wherever practicable, is to apply to the Judge without
delay and ask for rectification or review of the
judgment...."
8. So the Judges' record is conclusive. Neither lawyer
nor litigant may claim to contradict it, except before
the Judge himself, but nowhere else."
Thus, the issue as to whether any consent was
given by the petitioner herein before the learned Court
below for passing the order dated March 23, 2021
cannot be decided by this Court. Records reveal that
the petitioner has already filed an application under
Order 47 of the Code before the learned Court below
and the same is still pending before the learned Court
below. Accordingly, this Court is of the view that
justice would be sub-served if the learned Presiding
Officer, who passed the order dated March 23, 2021,
is directed to hear out the said application for review
expeditiously.
With regard to the argument and counter
argument of the parties insofar as the effect of the
communication between the father and the child on
the health of the child is concerned, this Court does
not deem fit, at this stage, to make any observation on
that aspect as it does not appear from the impugned
order that such aspect of the matter was at all raised
before the learned Judge of the Court below when the
matter was heard on March 23, 2021.
Whether the petitioner herein prayed for
hearing of the demurer application before the learned
Judge on March 23, 2021 is also a matter to be
considered by the learned Court below while deciding
the application for review as a specific ground has
been taken in this regard in the said application for
review.
With regard to the other contentions of Mr. Sen
that the status quo immediately after passing of the
order dated April 12, 2021 by this Court is to be
continued till the matter is heard by the learned Court
below, cannot be accepted by this Court as this Court
is not inclined to interfere with the order impugned in
the instant civil order for the reasons as aforesaid. The
legality and/or foundation of such order is the subject
matter of the review application, which is to be decided
by the learned Judge of the Court below.
Since the matter relates to visitation right of a
father over his child and the nature of the allegations
made in the review application are such that the same
is required to be decided at the earliest as observed by
the Hon'ble Supreme Court of India in Ramdas
(supra), I request the learned District Judge, 24
Parganas (South) at Alipore to place the application for
review filed by the petitioner herein in connection with
ACT VIII Case No. 37 of 2020 before the learned
Presiding Officer, who passed the impugned order
dated March 23, 2021, at the earliest.
Upon the matter being placed before the learned
Presiding Officer, the learned Presiding Officer shall
make endeavour to take up the hearing of the said
application and dispose of the application for review
expeditiously and without granting any unnecessary
adjournment to either of the parties.
This Court, however, makes it clear that this
Court has not gone into the merits of the review
application and the learned Judge of the Court below
will be free to decide the same in accordance with law.
The parties will be at liberty to approach the
learned Court below by making necessary application
for appropriate reliefs.
With the aforesaid directions, C. O. No.894 of
2021 is disposed of without, however, any order as to
costs.
Registry is directed to communicate this order to
the learned District Judge, 24 Parganas (South) at
Alipore forthwith.
The parties will also be at liberty to
communicate this order to the learned District Judge,
24 Parganas (South) at Alipore and the learned Judge
of the Court below.
Urgent Photostat Certified copy of this order, if
applied for, be supplied expeditiously after complying
with all necessary legal formalities.
(Hiranmay Bhattacharyya, J.)
