Puja Bhattacharya vs Subir Acharya

Aparesh Kumar Singh, CJ

Heard Mr. Samar Das, learned counsel appearing for the petitioner-wife.

In a proceeding under Section 26 of the Hindu Marriage Act, 1955 for custody of the two minor sons, aged 5 years and 3 years respectively of the parties, visitation rights has been allowed in favour of the respondent-husband as an interim arrangement by the impugned order dated 05.12.2024 passed by the learned Judge, Family Court, Udaipur, Gomati Tripura in Civil Misc. case No.22 of 2024.

The petitioner had filed a divorce application bearing T.S.(Divorce) case No.100 of 2022 whereas the respondent filed a case under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights being T.S.(RCR) No.56 of 2021, both of which are pending before the learned Family Court, Udaipur. In the divorce proceeding, respondent-husband filed a petition under Sections 24 and 25 of the Act of 1955 for maintenance and also cost of the proceedings asserting that petitioner is a Government employee earning Rs.60,000/- per month whereas the respondent is unemployed. The respondent thereafter filed T.S.(Declaration) No.01 of 2023 under Section 12 of the Guardians and Wards Act, 1890 for visitation rights of his minor sons. According to learned counsel for the petitioner, this suit under the Act of 1890 was withdrawn on objection of the petitioner. Thereafter, an application under Section 26 of the Hindu Marriage Act, 1955 was filed by the respondent for visitation rights of the minor sons in which this interim arrangement has been made.

Learned counsel for the petitioner submits that the impugned order though has been passed in the presence of learned counsel representing the petitioner but she was not present. The learned Family Court has ordered visitation rights at least twice a month on the dates of school holidays between 7 p.m. to 9 p.m. at the residence of the respondent where the petitioner is required to take the minor sons. It is submitted that the petitioner may have practical difficulties in complying with the order which is to take effect from 21.12.2024 and 22.12.2024 for the month of December, 2024. For the next month, directions as above would follow as per the learned Court. He submits that tomorrow, i.e. 21.12.2024 the school is open whereas on 22.12.2024 is a winter camp which the children have to attend. Therefore, the petitioner rushed to this Court in the present proceedings under Article 227 of the Constitution of India for interference.

I have considered the submission of learned counsel for the petitioner in the limited gamut of facts placed from record and the provisions of law applicable to exercise of such powers for visitation rights under the Hindu Marriage Act, 1955. I have also gone through the impugned order.

By the impugned order dated 05.12.2024 only an interim arrangement of visitation rights has been made by the learned Family Court and that too, for the month of December, 2024 allowing the respondent-husband to meet his two minor sons between 7 p.m. to 9 p.m. at his residence with a rider that such meeting should be on the school closure days, i.e. holidays. Granting of visitation rights during pendency of divorce proceedings for 2(two) hours in favour of one of the spouses when there is no such overwhelming material to deny such rights to one of the parents is not open to be questioned on any tenable grounds, more so, when the main proceedings are still pending before the learned Family Court. In case, these two dates are school working days or camp arranged by the school authorities and the children may have difficulties in attending, it was always open for the petitioner to seek modification of the dates of visitation rights before the learned Family Court. It is left open to the discretion of the learned Family Court to depute a Para Legal Volunteer, if deems necessary during the period on the dates of visitation at the residence of the respondent to ensure that the visitation is carried out in a peaceful manner.

The present revision petition is disposed of with the aforesaid observations.

Pending application(s), if any, also stands disposed of.