SUPREME COURT OF INDIA

Before:- G.B. Pattanaik and M.B. Shah, JJ.

Civil Appeal No. 3903 of 1999. (Arising out of SLP (C) No. 7948 of 1998) D/d. 20.7.1999.

Bijay K. Prasad - Appellant

Versus

Ranjana - Respondent

Hindu Marriage Act, 1955, Section 26 - Divorce proceeding - Custody of child - During pendency of divorce proceedings Family Court ordered girl child to remain living with father and to spend holidays with mother - Child states her wish to stay with father in chambers of S.C. Judge - Considering that child was living with father for past 8 years - Directions of Family Court to stay with mother in holidays set aside.

[Para 3]

ORDER

G.B. Pattanaik, J. - Leave granted.

2. The petitioner husband filed a divorce proceeding against his wife Ranjana, the respondent herein in the Family Court at Bhagalpur. On an application being filed by the wife, the said proceeding stood transferred to the Family Court at Patna. Before the Family Court at Patna, the respondent filed an application for directing the petitioner to bring the child so that she can see her. On this application, the Court directed that the child should be produced on a particular date. The child happens to be the daughter of the petitioner and the respondent. The Family Court, Patna then directed issuance of a search warrant for production of the child. As on the date fixed, the child could not be produced in court, the petitioner filed an application for recalling of the said order but that prayer was rejected by the Family Court. The petitioner moved the High Court in civil revision and the High Court directed that the child should be produced in court. Pursuant to the said order, the child was produced before the Court but she never made any dialogue with her mother, the respondent herein. The civil revision was however disposed of on an undertaking by the petitioner that the child will be produced in court so that the respondent can meet her whenever the Court directs. The Family Court by an order dated 25-8-1995 directed that during the pendency of the suit, the child will remain with her father but during the vacation, she would stay with her mother. It was also further directed that the child should be produced in court on 28-9-1995, before the beginning of ?Durga Puja? holidays. The child could not be produced on 28-9-1995 on account of heavy floods and an application was filed by the petitioner for recalling of the order indicating the grounds for which the child could not be produced, but the same was dismissed by the Family Court at Patna. Against that order, the petitioner preferred a miscellaneous appeal to the High Court but the High Court also dismissed the same and hence the present appeal.

3. In course of hearing of this appeal, we have called upon the appellant to produce the child in chambers and pursuant to such directions, the said child was produced before us in chambers. Then we asked the child several questions. The mother was also called in the presence of the child and the child is categorical that she would like to stay with her father. It is to be stated that the child is staying with her father for the last eight years. In this view of the matter, we think it appropriate to direct that the girl child should be allowed to continue living with her father. The direction that the child should stay with her mother during the holidays is set aside. The divorce proceeding is restored back to the file and may be expeditiously tried and disposed of. It is open for either party to make application for custody of the child in accordance with law. Any further direction with regard to meeting the child can be obtained from the Family Court.

4. The appeal is disposed of accordingly.

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