Kumar Chatterjee Vs. Dipa Chatterjee & Ors  Insc 497 (19 September 2001)
Mohapatra & Shivaraj V. Patil D.P.Mohapatra, J.
have heard the petitioner Shri Bimlendu Kumar Chatterjee, who appeared in
person and learned counsel appearing for the respondents.
appellant is the husband of respondent no1. Smt. Dipa Chatterjee. The dispute
raised in the case relates to the right of the appellant to have custody or at
least a right to visit regularly his daughter who is now residing with
appeal is directed against the order passed by a Division Bench of the Ranchi
Bench of Patna High Court on 6th November, 2000 in LPA 358/97 (R) titled Bimlendu Kumar Chatterjee vs. Smt.Dipa Chatterjee
portion of the order reads thus :
Court heard this matter for some time. The Court has also seen the record of
the present letters patent appeal. The Court is also conscious of the order
which was passed by a Bench presided over by Honble Mr.Justice Narayan Roy and Honble
Mr.Justice M.Y.Eqbal on 25th November, 1997. In short, the Court will not
permit the child to become a shuttle- cock. The matter must rest on the order
as recorded on 25th
the application filed on 16th
August, 2000 is
the above order it is clear that the Division Bench has reiterated the
arrangement made in the order dated 25th November, 1997 regarding custody of the child.
order dated 25th
November, 1997 in LPA
No.358/1997 (R) a Division Bench of the High Court disposed of the petition
filed by the appellant herein praying to the Court to ascertain from the
respondent no.1 herein whether she was agreeable to the desire expressed by him
for an amicable settlement of the matter. The Division Bench disposed of the
said petition with the following order :
find that the Letters Patent Appeal itself has been filed for giving custody of
the girl child to the appellant. Since the matter is subjudice in this court,
in our view, it would not be appropriate to pass any direction giving the
female child in custody of the appellant even temporarily.
liberty has already been given to the appellant by the order impugned to see
his daughter at least once in a week and in view of the direction the appellant
may see his daughter once in a week and the respondent no.1 must make her
daughter available to the appellant in terms of the order impugned.
the reasons aforementioned we refrain ourselves from passing any further order
in the matter.
in the order passed on 10th August, 1998 in MJC No.783 of 1997 (R) filed in LPA
No.358/97 (R) for initiation of a contempt proceeding against respondent no.1
for violating the order dated 25th November, 1997 of the Court, a Division
Bench passed the following order :
petitioner will have the liberty to visit the house of Opp. Party NO.1 on every
Sunday in the afternoon between 2.00 p.m. and 4.00 p.m. and if he does so, the Opp. Party No.1 will make
arrangement to enable him to meet daughter and allow him to remain with her for
a reasonable time.
order is being passed so as to avoid future controversy.
No.358/97 (R) was decided by the judgment rendered by a Division Bench on 4th
May, 2000. The appeal was allowed and that part of the order by which the
learned single Judge had directed that the child will remain with the mother
with liberty to the father to go and see the child at least once a week, was
it appears that the respondent no.1 having failed to restore custody of the
child to him, the appellant filed an application before the High Court seeking
implementation of the order of the Family Court, Dhanbad giving custody of the
child to him. Considering the said application, another Division Bench passed
the order dated 6th November, 2000, as quoted earlier. The said order is under
challenge in this appeal.
noted earlier, in the order under challenge, the High Court reiterated the
order passed on 25th November, 1997 in LPA No.358/97 (R) overlooking the
position that the said order which was an interim order passed in the appeal
was not subsisting after disposal of the appeal by the judgment dated 4th May,
2000. Further, the Division Bench had also overlooked the position that the LPA
itself having been disposed of, no further order reviving the interim order
passed during the pendency of the said appeal could be passed in the disposed
of case. In the circumstances, the order under challenge is clearly
unsustainable and has to be set aside. The learned counsel appearing for the
respondents fairly accepted the position that the impugned order is wholly
the question arises what will be an appropriate order to be passed on the facts
and circumstances of the case. The appellant, who is the father of the child,
submitted before us that after long years of litigation, he has not yet got
even a right to see his child for some time at regular intervals. The grievance
of the appellant cannot be brushed aside. A humanitarian approach is necessary
for solving the problem.
result, the appeal is allowed. The order dated 6th November, 2000 in LPA No.358/97 (R) is set aside.
is granted to the appellant to file an application for appropriate interim
arrangement for getting custody of his child or for making an arrangement
enabling him to see his child at regular intervals before the Court in which
the suit/appeal stated to have been filed by him is pending. If such an
application is filed, the Court will dispose of the same as expeditiously as possible.
There will be no order as to costs.