Sudipta Das vs Tapas Kumar Das
2022 Latest Caselaw 1398 Cal

Dl.   March 22,              F.M.A.T. 945 of 2019
21.    2022

                             Sudipta Das
                                 Vs,
                             Tapas Kumar Das

                             Mr. Partha Sarathi Das,
                             Mr. Debnath Mahata,
                                   ...for the appellant.

                             Mr. Pratip Kumar Chatterjee,
                                   ...for the respondent.

Re: CAN 11378 of 2019 (Section 5) filed on November 27, 2019.

There is a delay of 898 days in presenting the

memorandum of appeal, as it appears from the Stamp Reporter's

report dated September 18, 2019.

The appeal is arising out of a proceeding under the

Guardians and Wards Act concerning the custody of the child,

namely, Sayantoni Das. The appellant is the mother of the child.

The appellant has tried to explain the delay by referring to an ill-

advised proceeding initiated before the criminal jurisdiction of this

court against the judgment and order dated January 2, 2017 passed

in the proceeding under Section 25 of the Guardians and Wards Act.

The said proceeding was dismissed as withdrawn, as it appears from

the order passed by Jay Sengupta, J. in C.R.R. 59 of 2019. The

processes in obtaining the certified copy - both before and after the

order was passed by Jay Sengupta, J. on February 15, 2019 - are the

reasons stated in the application for condonation of delay in support

of the plea that the appellant was prevented by sufficient cause from

presenting the memorandum of appeal within the period of

limitation. The appellant did not comply with the order passed by

the learned Additional District Judge at Kandi, Murshidabad, on

January 2, 2017. The appellant also seems to be not in a hurry to

move this application immediately after the same was filed. She

retained custody of the child on the ground that the appeal is

pending.

However, having regard to the fact that this matter is

concerning custody of the child and keeping in mind welfare of the

child is a paramount consideration, we condone the delay of 898

days in filing the appeal.

The application for condonation of delay is, therefore,

allowed.

Office is directed to register the appeal if it is,

otherwise, in form.

There will be no order as to costs.

Re: CAN 11379 of 2019 (stay) Filed on November 27, 2019.

We have gone through the order impugned in this

appeal and, prima facie, we are of the view that a bonding should

develop between the child and the father.

The fact stated in the impugned order shows that there

are enough materials before the trial court to pass the impugned

order taking into consideration the welfare of the child. However, as

fairly submitted by the learned advocate representing the

husband/opposite party that he has married recently, we need to find

out whether the welfare of the child would be adequately protected

if the custody of the child is handed over to the father/opposite party

in terms of the order impugned. It also needs to be taken into

consideration that the appellant, during the subsistence of the earlier

marriage, married one Subrata Chowdhury, her paramour, and it

was submitted on behalf of the appellant that the child is in her

custody all along. Both the appellant and the respondent are

working and the financial need of the appellant for herself is not

required.

In order to develop a bonding between the child and the

father, we direct the appellant to hand over the child to the

father/opposite party on every Saturday on or before 10-30 a.m. at

the residence of Mr. Nisith Kumar Ghosh, learned advocate, near

Old Electric Supply Officer, Kandi, Murshidabad, and the father

shall hand over the child to the appellant on the following day, that

is, Sunday night positively around 8-00 p.m. at the residence of Mr

Nisith Kumar Ghosh.

We make it clear that education of the child shall not be

compromised and both the appellant and the respondent shall take

conscious and fair decision in this regard.

The aforesaid arrangement with regard to visitation

right shall take effect immediately.

Since the respondent has already entered appearance,

service of notice of appeal on the respondent is dispensed with and

the appeal is treated as ready as regards service. The learned

advocate for the respondent shall file his vakalatnama in the

department in course of this week.

Let the lower court records of this case be called for

through a special messenger at the cost of the appellant and such

cost is to be put in by Friday next.

Office shall bring the lower court records immediately

after the special messenger cost is being put in.

The appellant shall file the requisite number of paper

books - printed, typewritten or cyclostyled - as the case may be, out

of court, within a period of one week from the date of service of

notice of arrival of lower court records on the learned advocate on

record for the appellant.

The matter shall be listed on April 12, 2022.

dns ( Ajoy Kumar Mukherjee, J. ) ( Soumen Sen, J. )