SAIBAL BASU vs SUDEEPTA BASU

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

BEFORE:
THE HON’BLE JUSTICE OM NARAYAN RAI

C.O. 918 of 2026
Sri SaibalBasu
-Vs-
Smt.SudeeptaBasu



For the Petitioner : Mr. SaibalBasu (in-person)

For the Opposite Party : Dr. Debabrata Karan, Sr. Adv.,
Mr. Debopriyo Karan,Adv.

Heard on : 07.05.2026
Judgment on : 07.05.2026
OM NARAYAN RAI, J.:-
1. This revisional application is directed against an order dated February 10,
th
2026 passed by the learned Additional District Judge, 10 Court,Alipore in
Act VIII Case No. 59 of 2018 whereby the petitioner’s application under
Section 151 of the Code of Civil Procedure, 1908 (hereafter “the Code”)
praying inter alia for interim custody of a minor child during all weekends,
half of all school vacations, special school holidays and all special occasions
of the child, including but not limited to occasions like birthday till the final
adjudication and disposal of the said Act VIII case has been rejected.

2. The petitioner has instituted ActVIII Case No. 59 of 2018 praying inter
alia for custody of his minor child. In the said case, the petitioner had filed
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an application under Section 12 of the Guardians and Wards Act, 1890
(hereafter “the 1890 Act”) which was disposed of by an order dated April 12,
2023. The said order was carried in revision before this Court by filing C.O.
2501 of 2023. The said revisional application came to be disposed of on
October 12, 2023 by modifying the order dated April 12, 2023 to a certain
extent. By the said order dated October 12, 2023 a Co-ordinate Bench of
this Court had directed the learned Trial Court “ to dispose of the ACT-VIII
case within a period of six month mandatorily, from the date of
communication” of the order without granting any unnecessary adjournment
to either of the parties.
3. Since the Act VIII case was not concluded within the time fixed by this
Court, despite the aforesaid order, the petitioner approached this Court
again by filing C.O. 2390 of 2024.
4. The said revisional application was disposed of by this Court by an order
dated July 09, 2024 by requesting the learned Trial Court to “ make all
endeavor to bring the said case to its logical conclusion within a reasonable
time”. This Court passed such direction, uponreferring to the earlier order
dated October 12, 2023 by which disposal of the Act VIII case was directed
to be done within a period of six months mandatorily. Despite the aforesaid
order, the Act VIII case is still continuing.
5. In such circumstances, the petitioner filed another application under
Section 151 of the Code praying, inter alia , forinterim custody of the minor
child during all weekends, half of all school vacations, special school
holidays and all special occasions of the child, including but not limited to
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occasions like birthday till the final adjudication and disposal of the Act VIII
case.
6. Such application has been rejected by the learned Trial Court by passing the
order impugned. Feeling aggrieved by such order, the petitioner has
approached this Court by way of the present revisional application.
SUBMISSIONS MADE BY THE PETITIONER:

7. The petitioner, appearing in person, submits that the opposite party is solely
responsible for the long pendency of the case. He refers to a table of
adjournments and deferments (at pages 107 to 109 of the revisional
application) and submits that the case has been adjourned on fifty four
occasions and while the majority of such adjournments isattributable to the
opposite party, there is none attributable to the petitioner.
8. Relying on a judgment of the Hon’ble Supreme Court in the case of Yashpal
1
Jain vs. Sushila Devi & Others , it is submitted that it has now been
mandated by the Hon’ble Supreme Court that trial of a suit should be
conducted on day to day basis and dates should be fixed in consultation
with the learned Advocates appearing for the respective parties to enable
them to adjust their calendar so that case proceedings are not hampered.
9. He further submits that the order impugned is wholly unreasoned. It is
submitted by the petitioner that the petitioner’s prayer has been rejected on
the specious ground that as the order dated April 12, 2023 that had been
initially passed by the learned Trial Court, was modified by the order dated
October 12, 2023 passed by this Court in C.O. 2501 of 2023 therefore, no

1
AIR 2023 SC 5652 : 2023 SCC OnLine SC 1377
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further order could be passed on the petitioner’s application under Section
151 of the Code.
10. He submits that the learned Trial Court has failed to appreciate that the
order dated October 12, 2023 passed by this Court in C.O. 2501 of 2023
was premised on the then obtaining position and the Court’s expectation
that the Act VIII case would be concluded in the following six months as
directed by this Court. He asserts that since the proceedings have long
spilled over the period mandatorily fixed by this Court, for which the
petitioner is not to be blamed, therefore,he should not be deprived of the
interim custody of his child with whom, he has interactions only on selected
occasions.
11. In support of his submission that no permanence can be attached to orders
passed in child custody matters, he relies on a judgment of the Hon’ble
2
Supreme Court of the case of Rosy Jacob vs. Jacob A. Chakramakkal .
12. Another judgment of the Hon’ble Supreme Court in the case of VikramVir
3
Vohra vs. ShaliniBhalla has also been cited for the same proposition.
13. He next takes the Court through an order passed by another Co-ordinate
Bench of this Court in CPAN 409 of 2020 and CPAN 522 of 2020 wherein
this Court had observed that the opposite party was guilty of contempt of
Court by willful and deliberate violation of orders passed by the learned
Additional District Judge by not allowing visitation to the father i.e. the
petitioner herein. He submits that such conduct alone, should have
disentitled the opposite party to object to any of the prayers made by the

2
AIR 1973 SC 2090 : (1973) 1 SCC 840

3
AIR 2010 SC 1675 : (2010) 4 SCC 409
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petitioner especially since she is responsible for the painful protraction of
the litigation.
14. In support of his contention that conduct of a party is a relevant
consideration in matters pertaining to child custody, he relies on a judgment
of the Hon’ble Supreme Court in the case of Gaurav Nagpal vs.
4
SumedhaNagpal .

15. The petitioner hands up to Court a server copy of the order dated May 06,
th
2026 passed by the learned Additional District Judge, 10 Court,Alipore,
South 24-Parganas under Act VIII Case No. 59 of 2018 and submits that
even on the last date i.e. May 06, 2026 that had been fixed for the opposite
party’s evidence, adjournment was sought for by the opposite party and the
same was granted by the learned Trial Court fixing July 07, 2026 as the
next date for the opposite party’s witness “as special last chance”.
SUBMISSIONS MADE ON BEHALF OF THE OPPOSITE PARTY:
16. Learned Senior Advocate appearing for the opposite party, submits that the
petitioner has been remiss in making payments of the maintenance that had
been directed by the learned Court in favour of the opposite party and that
substantial sums are due and owing from the petitioner on such count.
17. It is further submitted that in view of the order dated October 12, 2023
passed by this Court in C.O. 2501 of 2023, the learned Trial Court has
rightly rejected the petitioner’s prayer made in the application under Section
151 of the Code.

4
AIR 2009 SC 557 : (2009) 1 SCC 42
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18. It is then submitted that since no affidavits have been called for all the
allegations made in the revisional application shall be deemed not to have
been admitted by the opposite party.
RE-JOINDER BY THE PETITIONER:
19. The petitioner refutes the contention of the opposite party that any sum is
due and owing from the petitioner on account of maintenance. It is
submitted that the petitioner has been meticulous and regular in making
payments to the opposite party in terms of the direction passed by the
learned Trial Court.
ANALYSIS & DECISION:
20. Having heard the contention of the respective parties and having considered
the material on record, this Court is of the considered view that the order
impugned cannot be sustained for the reasons that follow hereinafter.
21. The order dated October 12, 2023 had been passed with a view to make
certain interim arrangements for the purpose of facilitating visitation of the
petitioning father in respect of his child. Indeed the order dated April 12,
2023 passed by the learned Trial Court (by which the petitioner was
aggrieved), stood modified by the order dated October 12, 2023, but at the
same time, it cannot be lost sight of that this Court had also directed the
learned Trial Court to dispose of the Act VIII case within a period of six
months. A holistic reading of the order dated October 12, 2023 would not
suggestan inference that the interim arrangements were meant to continue
ad infinitum without change, notwithstanding the fact that the Act VIII case
that had been directed to be concluded within six months has continued for
fivefold that time and is still counting.
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22. It cannot be said that the state of affairs which was there when the order
dated October 12, 2023 still continues at this distance in time when the
father and the child have already spent more than two and half more years
of limited access to each other.
23. The learned Trial Court was therefore, required to apply its mind to the
matter and to reach an independent conclusion as to whether there was a
changed fact situation and if indeed it was so then whether in such
situation, the petitioner’s prayers as made in the said application under
Section 151 of the Code could be considered for grant.The learned Trial
Court was not justified in declining the petitioner’s request merely on the
ground that the petitioner’s prayer for interim visitation and other reliefs
had been answered in a certain way more than two and half years back. The
learned Trial Court ought to have considered as to whether with passage of
time the petitioner’s prayers have entered the zone of fruition keeping mind
the welfare and the best interest of the child.
24. The judgment of the Hon’ble Supreme Court in the case of Rosy Jacob
(supra)which has been followed by the Hon’ble Supreme Court in VikramVir
Vohra (supra)alsoprovides a complete answer to such a situation in
paragraphs 14 and 17 thereof. The relevant extracts of the said paragraphs
are given hereinbelow:-
“ 14. …………………………………. Absolute right of parents over the destinies and
the lives of their children has, in the modern changed social conditions, yielded to the
considerations of their welfare as human beings so that they may grow up in a normal
balanced manner to be useful members of the society and the guardian court in case
of a dispute between the mother and the fatheris expected to strike a just and proper
balance between the requirements of welfare of the minor children and the rights of
their respective parents over them......................”.
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17. The appellant's argument based on estoppel and on the orders made by the
court under the Indian Divorce Act with respect to the custody of the children did not
appeal to us. All orders relating to the custody of the minor wards from their very
nature must be considered to be temporary orders made in the existing circumstances.
With the changed conditions and Circumstances, including the passage of time, the
Court is entitled to vary such orders if such variation is considered to be in the interest
of the welfare of the wards. It is unnecessary to refer to some of the decided cases
relating to estoppel based on consent decrees, cited at the bar. Orders relating to
custody of wards even when based on consent are liable to be varied by the Court, if
the welfare of the wards demands variation.”
(Emphasis supplied)
25. The learned Trial Court was thus required to appreciate the essence of child
custody cases and examine the prayers made in the petitioner’s application
from the view point of the welfare and best interests of the child. The order
impugned evidently lacks all of this and is therefore liable to be interfered
with.
26. For all the reasons aforesaid, the order impugned dated February 10, 2026
is set aside. The matter is remitted to the learned Trial Court for a fresh
consideration on merits. The learned Trial Court is requested to hear the
parties afresh and decide the petitioner’s application under Section 151 of
the Code for interim custody and allied reliefs in accordance with law, upon
interviewing the child if necessary.
27. Since the Act VIII case has been pending since 2018 and there have been at
least two directions for expeditious disposal thereof by this Court, the
learned Trial Court is requested to consider the directions passed by this
Court in. In such regard, the directions issued by the Hon’ble Supreme
Court in the case of Yashpal Jain (supra) must be observed. In such
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context the following observations in paragraph 47 of the judgment may be
noted:-
“ 47 .

v. Fixing of the date of trial shall be in consultation with the learned advocates
appearing for the parties to enable them to adjust their calendar. Once the date of
trial is fixed, the trial should proceed accordingly to the extent possible, on day-to-
day basis.
vi. Learned trial judges of District and Taluka Courts shall as far as possible maintain
the diary for ensuring that only such number of cases as can be handled on any
given day for trial and complete the recording of evidence so as to avoid
overcrowding of the cases and as a sequence of it would result in adjournment
being sought and thereby preventing any inconvenience being caused to the
stakeholders.
vii. The counsels representing the parties may be enlightened of the provisions of
Order XI and Order XII so as to narrow down the scope of dispute and it would be
also the onerous responsibility of the Bar Associations and Bar Councils to have
periodical refresher courses and preferably by virtual mode.
viii. The trial courts shall scrupulously, meticulously and without fail comply with the
provisions of Rule 1 of Order XVII and once the trial has commenced it shall be
proceeded from day to day as contemplated under the proviso to Rule (2)……..”
28. Since the learned Trial Court has fixed July 07, 2026 as the next date for
the defendant’s witness, the learned Trial Court is requested to consider
hearing out the application under Section 151 of the Code and disposing the
same prior to the said date so that the suit can also proceed unhindered by
the pending interlocutory application.
29. The parties shall be at liberty to make appropriate application for early
hearing of the application under Section 151 of the Code before the learned
Trial Court.
30. No opinion is expressed on the submissions made by the parties as regards
maintenance.It will be open to the parties to take appropriate steps on
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suchcount in accordance with law. With the aforesaid observations C.O. 918
of 2026 stands disposed of.There will be no order as to costs.
31. Since no affidavit has been invited, affidavit-in-opposition has been invited
all allegations made in the revisional application shall be deemed not to
have been admitted by the opposite party.
32. Urgent Photostat certified copy of this order, if applied for, be supplied to the
parties subject to compliance with all requisite formalities.

(Om Narayan Rai, J.)






D/L- 10
NMD

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