The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: Secreatary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 07-Aug-2023 16:44:18 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 20344 of 2023 Ankita Priyadarshini Petitioner Mr. Tusar Kumar Mishra, Advocate …. -versus- Pratap Kumar Panda …. Opp. Party CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 04.08.2023 2. 1. This matter is taken up through hybrid mode. 2. Certified copies of Annexure-3 and Letter of IIC, Lalbag PS dated 29th January, 2023 addressed to learned Judge, Family Court, Bhubaneswar filed in Court are taken on record. 2.1 Petitioner in this writ petition seeks to assail the order dated 13th January, 2022 (Annexure-3) and order dated 23rd March, 2023 (Annexure-6) passed by learned Judge, Family Court, Bhubaneswar in CP No.383 of 2021. By order under Annexure-3, learned Judge, Family Court granted visitation right to the Opposite Party to meet the minor child at the residence of the Petitioner. By order under Annexure-6, a petition to recall order dated 30th November, 2022 (Annexure-5) was rejected. 3. Mr. Mishra, learned counsel submits that although the Opposite Party visited the minor child at the residence of the Petitioner, pursuant to order under Annexure-3, but an application was filed on 26th April, 2023 (Annexure-4) stating that the Petitioner did not allow him to visit the child. Accordingly, vide order dated 30th November, 2022 (Annexure-5), learned Judge, Family Court directed the Opposite Party to approach the IIC, local Police Station for exercising his visitation right. Accordingly, Opposite Party approached the IIC, Lalbag Police Station to visit the child. Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: Secreatary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 07-Aug-2023 16:44:18 // 2 // However, the Petitioner filed an application on 26th December, 2022 to recall the order under Annexure-5. Learned Judge, Family Court relying upon the letter dated 29th January, 2023 of IIC, Lalbag Police Station, rejected the application vide order under Annexure-6. Hence, this writ petition has been filed. 3.1 It is submitted by learned counsel for the Petitioner that in a proceeding under Section 9 of the Hindu Marriage Act, 1955 (for brevity ‘the Act’) an interim application under Section 26 of the said Act is not maintainable. Thus, the order dated 13th January, 2022 (Annexure-3) is not sustainable. Further, the Opposite Party in his petition dated 26th April, 2022 (Annexure- 4), has categorically stated that he met the child. But, without considering the same, learned Judge, Family Court passed the order under Annexure-5. No opportunity of hearing has been given to the Petitioner when order under Annexure-5 was passed. Accordingly, the Petitioner filed an application to recall the said order, which was rejected relying on the letter of IIC, Lalbag Police Station, as stated above. It is submitted that the Opposite Party wants to take custody of the child in the garb of visiting him. Moreover, the Opposite Party had visited the house of the Petitioner on 8th January, 2023 for the second time. The Petitioner is a helpless lady and if the Opposite Party is allowed to take custody of the child, she will be highly prejudiced. Hence, this writ petition has been filed. 3.2 In support of his case, learned counsel for the Petitioner relied upon the case law in the case of Priyanka Vs. Santosh Kumar, reported in 2022 LiveLaw (SC) 1021 and submits that an application under Section 26 of the Act in a proceeding Section 9 of the Act is not maintainable. The Opposite Party has to maintain a separate proceeding for the same. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: Secreatary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 07-Aug-2023 16:44:18 // 3 // 4. Considering the rival contentions of the parties and on perusal of record, it appears that the petition (Annexure-2) for visitation of the child was not filed under Section 26 of the Act. In the case of Priyanka (supra), no observation with regard to maintainability of the petition under Section 26 of the Act in a proceeding under Section 9 of the Act has been made. A petition for visitation of the minor child is maintainable in a matrimonial proceeding. When the biological father wants to meet his child, such right should not be denied, which is of course, subject to the conditions to be fixed by the Court. In the instant case, it appears that the Petitioner-Mother obstructed visitation of the child by the Opposite Party-Father. Thus, an application was filed on 26th April, 2022 explaining the same. Since the Petitioner was absent on call, it was heard in her absence and a direction was made to the Opposite Party to approach the IIC of the local Police Station for implementation of the order under Annexure-3. Accordingly, the Opposite Party approached the Lalbag Police Station under the local jurisdiction of which the Petitioner resides. Certified copy of the letter of IIC, Lalbag PS has been filed by learned counsel for the Petitioner in Court today, which reads as under:- “Ref- Civil Proceeding No-383 of 2021 Sub- Submission of report regarding non-cooperation against the opposite party namely Smt Ankita Priya Darshini Panda (29) D/o Somanath Panda of Dagarapada, Baniasahi, PS-Lalbag Dist- Cuttack, Sir, I have the honour to submit that as per order dt 13.01.2022 the opposite party namely Smt Ankita Priya Darshini Panda (29) D/o Somanath Panda of Dagarapada, Baniasahi, PS- Lalbag, Dist-Cuttack was informed in well advance to carry out the order of the Hon'ble Court to allow the petitioner Pratap Kumar Panda to meet his minor son for one hour in the house of the opposite party Smt Ankita Priya Darshini Panda on 08.01.2023 at 10.30 AM. But on 08.01.2023 at about 10.30 AM while Sri Pratap Kumar Panda along with SI Truptimayee, Sahoo of Lalbag PS reached at the house of Smt Ankita Priya Darshini Panda at Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: Secreatary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 07-Aug-2023 16:44:18 // 4 // Dagarapada, Baniasahi, she deliberately avoided police and her mother did not cooperate to the process to meet the minor son with his father Pratap Kumar Panda. They knowingly disobeyed the order of Hon'ble court. At last the police officer along with Pratap Kumar Panda returned without executing the order of the court. This is for favour of kind information.” On perusal of the above letter, it appears that the Petitioner did not cooperate for implementation of the order under Annexure-3. In that view of the matter, learned Judge, Family Court has committed no error in directing the Petitioner to produce the minor child before the Court. 4.1 At this stage, Mr. Mishra, learned counsel submits that the Petitioner is not in a position to carry the child to Bhubaneswar to produce him before learned Judge, Family Court. 5. Without expressing any opinion on such submission, this Court observes that in such event, the Petitioner should move the learned Judge, Family Court, Bhubaneswar expressing her difficulty. 6. Considering the matter in its entirety, this Court is of the considered opinion that there is no illegality in the order under Annexures-3 and 6. It further appears that order dated 30th November, 2022 (Annexure-5), whereby the Opposite Party was directed to approach the IIC of the local Police Station for visitation of the minor child, which was sought to be recalled, is not challenged. Thus, this Court does not find any infirmity either in the order under Annexure-3 or Annexure-6, impugned herein. 7. Accordingly, the writ petition being devoid of any merit stands dismissed. (K.R. Mohapatra) Judge Page 4 of 4 s.s.satapathy