C.O. 2060 of 2024 + CAN 1 of 2025 + CAN 2 of 2025 07.07.2026 Sl no. 43 Sri Shiladri Sekhar Das Ct no. 2 - Vs – P.M. Anindita Ghosh Mr. Jayanta Narayan Chatterjee, Sr. Adv Ms. Paramita Mukhopadhyay, Ms. Moumita Pandit ... for the petitioner. Mr. Biswaroop Bhattacharyya, Mr. Subhasis Chakraborty, Ms. Sushmita Kumari Singh ... for the opposite party. 1. Present petition has been filed challenging the order dated 2nd February, 2024 whereby the learned District Judge, North 24- Parganas recalled the order No. 5 dated 28th August, 2020 passed in Misc Case No. 315 of 2019. 2. Facts in brief for the purpose of clarity of the facts are reproduced herein. The marriage between the parties was celebrated on 20th April, 2006 under the Special Marriage Act, 1954. The girl child was born in the year 2010. However, thereafter the matrimonial disputes arose between the parties, which led to the filing of Mat Suit No. 1118 of 2015. The said suit was disposed of on the basis of mutual consent. The decree of divorce was granted on 28th January, 2016. In the said proceeding it was mutually agreed that the custody of the child will remain with the opposite party/wife and the father i.e. the petitioner herein shall have visitation rights once in a week. In the meanwhile an application under Section 25 of the Guardian and Wards Act i.e. Misc. Case 176 of 2017 was filed by the petitioner/husband, however, the same was withdrawn. 3. In 2019 the petitioner/husband filed an application under section 38 of the Special Marriage Act bearing Misc. Case No. 315 of 2019 for enhanced visitation right. It was prayed that child may spend weekend with the petitioner. In these proceedings the court vide order dated 28.08.2020, granted Video Conference (e-visitation) on every Saturday between 5 p.m to 6 p.m. 4. The opposite party/wife moved an application under Section 151 C.P.C. on 7th November, 2022 praying for recalling of this 2 order on several grounds including such meeting “outraging the sentiments and emotions of the minor”. 5. Learned Trial Court interacted with the child and, thereafter allowed the application of the wife and recalled the order dated 28th August, 2022. Petitioner/husband aggrieved of this invoked the jurisdiction of this Court and prayed for setting aside of this order as well sought for an interim opportunity to interact with the child twice a week. 6. The coordinate Bench of this Court on 27th June, 2024 after taking into account the entire facts and circumstances inter alia directed as under : “The presence of both the father and mother in the life of a child is necessary for his/her balanced upbringing. The father is not in touch with the daughter for a long time, as such, as a primary step to develop the normal father-daughter relationship, he is permitted to have access to his daughter 3 ‘Amalia Das’ for one hour, on the next Sunday, i.e June 30, 2024 under the supervision of Mr. Bhattacharyya, learned advocate for the opposite party. The said visitation shall commence from 6 P.M at the chamber of Mr. Bhattacharyya, which is situated at:- PURBASHA HOUSING ESTATE BLOCK-D 19, FLAT – 4, 160, MANICKTALA MAIN ROAD, Kankurgachi, Kolkata - 700054 The mother/opposite party to facilitate the said father-daughter meeting shall produce the child at the above mentioned venue on the scheduled date and time. The father is entitled to get uninterrupted access to his daughter, but in the event the child is found to be too adverse, the father shall not insist on such access for the entire period of one hour. 4 The learned Advocate-on-record for the father/petitioner shall accompany his client to the venue but shall not be present at the time of his client’s access to his daughter.” 7. The visitation on 30th June, 2024 seems to have taken place smoothly and thereafter on 5th July, 2024 the Court passed the following order : “Prolonged absence has caused a gap between the father and daughter; to bridge it, time and patience of the child and her parents are necessary. However, as a preliminary measure to minimize such gap, the father is permitted to have virtual access to his daughter once in a week, preferably on Sunday for one hour from 6 P.M to 7 P.M. The mother shall facilitate such father-daughter meeting. In the event rescheduling of the date and time of such meeting is felt 5 necessary, the learned advocate- on-record for the parties shall communicate with each other”. 8. The matter further came up for hearing on 19th August, 2024 and the co-ordinate Bench of this Court directed as under : “The learned Counsel for the parties jointly submits that in terms of the order dated July 05, 2024 the father, the petitioner herein is getting hassle free virtual access to his child. Let the said access continue in the same manner until further order. In the event the said arrangement is worked out without any hindrance, the learned counsel for the parties agree that the connected miscellaneous case can be disposed of maintaining the present manner of access of the petitioner to his child”. 9. Both parties have fairly submitted that the virtual access as being directed in order 6 dated 5th July, 2024 by the co-ordinate Bench of this Court is taking place without any interruption or hassle. 10. However, learned senior counsel for the petitioner submits that the petitioner/ husband who is away from the child for many years may be granted physical visitation rights so that the bond between the father and the daughter may be revived and strengthened. 11. In this regard petitioner has filed CAN 2 of 2025 praying therein that the visitation right as granted by order dated 5th July, 2024 may be modified and physical visitation, may be for a limited duration, may be granted. 12. Learned senior counsel for the petitioner has pressed that for the purpose of welfare of the child and for the emotional requirement of the father, physical visitation right may be granted. 13. Learned counsel for the opposite party has opposed the same. 14. The facts which are not disputed are that MAT suit No. 1118 of 2015 was disposed of 7 on the basis of mutual consent between the parties. Physical visitation rights initially took place without any interruption, however petitioner/husband alleged that the opposite party/wife and her family started interfering on account of which such visitation became difficult. The petitioner therefore, sought for the custody of the child on every weekend. Learned senior counsel submits that after filing of Misc. Case 315 of 2019 the visitation stopped and in the meantime there was period of Corona also. 15. On the prayer of the petitioner/husband the Court vide order dated 28th August, 2020 granted virtual meeting between the father and the daughter. However this arrangement of virtual visitation was withdrawn by the impugned order dated 2nd February, 2024. 16. In such like petition, the court has to consider the submission of the parties, where either of the parents seek visitation right and the paramount consideration before the Court is the welfare of the child. 8 In the present case the child is female of around 16 years of age. It goes without saying that for the proper upbringing of the child, the love affection and care of both father and mother is necessary. The child has a right to get the affection and care of both the parents even if there is matrimonial disputes between the parties to the marriage. The child cannot be deprived of her right to have the love, affection and care of both the parents. However the difficulty arises when there are allegations and counter allegations between the parties and in such case the Court has to take into account the holistic facts, but the paramount consideration remains the mental and physical welfare of the child. 17. In the present case the mutual settlement between the parties has taken place in the year 2016, whereby the physical visitation rights were agreed upon between the parties. At that point of time the child must be of five to six years of age. Subsequently the virtual visitation rights were granted in the year 2020, and at that time the child 9 must be around ten years of age. There is a huge difference between the thought process and emotional and sentimental quotient of the child, while at the stage of ten years and sixteen years. The visitation rights which are granted by the Courts are dynamic in nature and have to be examined and reviewed from time to time taking into account the changed circumstances, if any. Therefore, such orders should be revisited afresh in terms of change in circumstance. 18. Therefore, this Court considers that the learned Trial Court should revisit the entire issue taking into account the present circumstances of both the parents and the child. 19. Thus, the present petition is disposed of with a liberty to the petitioner/husband to file a fresh application in Misc. Case No. 315 of 2019 under Section 38 of the Special Marriage Act, 1954. Learned Trial Court shall consider and decide such application independently without being influenced by the previous orders of the learned Trial Court and order of this Court, in 10 accordance with law after giving both the parties an opportunity of being heard. 20. However, till such time the application is decided, the arrangement as being made by this Court on 5th July, 2024 i.e. the virtual access to the petitioner/husband with the daughter namely “AD” once in a week preferably on Sunday from 6 p.m. to 7 p.m. shall continue without any interruption. 21. The opposite party/wife is requested to ensure that there should not be any hindrance to such virtual access between the parties. 22. Both the learned counsels have fairly submitted that it is a matter of satisfaction that this arrangement of virtual access is continuing smoothly. 23. Thus the present petition stands disposed of with all the pending applications. 24. Urgent photostat certified copy of this order, duly applied for, be given to the parties upon compliance of all usual requisite formalities. 11 (Dinesh Kumar Sharma, J.) 12