ORDER
Kalyan Jyoti Sengupta, J.
1. Both the matters are taken up for hearing as application being GA No. 3152 of 2005 is off-shoot of the original proceedings being AGWA No. 3 of 2005. The parties hereto were husband and wife at one point of time. They were married on 26th April, 1993. There has been no issue, except a girl child Shrabasti Saha of their above marriage. However, the marriage did not survive for long and it ended with a decree of dissolution dated 10th March, 2003 on their joint petition filed on 2nd September, 2002. In the joint petition there were various terms and conditions, apart from mutual intention to severe their marriage tie. The above order for dissolution of marriage was passed under Section 28 of the Special Marriage Act, 1954, by the learned Additional District Judge at Barasat accepting their terms and conditions mentioned in their joint petition. The parties thereto and herein, agreed as far as custody and maintenance of the said girl child who is now 8 years old are concerned, as follows:
(a) The child Shrabasti Saha shall remain in the custody and care of her mother, the petitioner No. 2 and the said petitioner No. 2 shall take all steps to get the child admitted in a good school and shall look after the welfare, well being, health and education of the child and towards her proper nourishment. The parties have agreed further that all major decisions for the schooling, extra-curricular training, major medical issues, etc. concerning Shrabasti will be jointly discussed, as far as practicable, and whenever appropriate and found feasible, prior to final decision taken and executed by the petitioner No. 2. It is however made clear that in case of disagreement over any matter concerning the child the petitioner No. 2 mother shall take final decision.
(b) The father of the child, the petitioner No. 1 will have the right to see and/or meet the child at her residence as and when required subject to the convenience of the child and her custodian mother, the petitioner No. 2.
(c) The parties have agreed further that the petitioner No. 1 that is to say the father of the child Shrabasti shall have full time access to Shrabasti for a quarter of her time, that is to say if the petitioner No. 1 is in the same city as that of Shrabasti, the father will be entitled to keep the child with him at the weekend of every week or one day plus half of the period of long vacation however without disturbing the academic schedule and other preoccupied matter touching the well-being of the child and with the consent of the petitioner No. 2.
(d) The petitioner No. 1 agrees to return the child to her mother after meeting in the manner as aforesaid, on the agreed date and without causing any inconvenience to the child.
13. That the petitioner No. 1 has agreed and undertakes to relinquish all his interest in the flat situated at 102 Ashirvad Apartments, 328, Canal Street, under police Station : Lake Town, Kolkata-700048, in favour of the petitioner No. 2 by executing proper deeds in her favour at his cost well before the date of hearing this application and the petitioner No. 2 will continue to own the said flat as full owner thereof.
(a) A sum of Indian Rupees fifty-five Lakhs (US Dollar one Lakh Ten Thousand) will be paid by the petitioner No. 1 Sanjib Saha to the petitioner No. 2 Bidisha Saha as full and final settlement of all her claims towards spouse maintenance, child support and child care. Out of the said sum of Rupees fifty-five Lakhs (US Dollar One lakh Ten Thousand), the petitioner No. 1 will pay to the petitioner No. 2 a sum of Rupees Forty Lakhs ((US Dollar Eighty Thousand) on or before signing of this petition by transferring the amount to Bank Account of the petitioner Mo. 2, the balance sum of Rupees Fifteen Lakhs US Dollar Thirty thousand) will be paid to the petitioner No. 2 by the petitioner No. 1, on the date when the case will be heard, which sum the petitioner No. 2 will be holding for the benefit of the child till such time she attains majority and the petitioner No. 2 shall have the liberty to keep the said sum invested by her as she may think proper and beneficial to the child and the interest and/or dividend derived from the said sum will be utilized towards the educational expenses as also towards the maintenance of the child Shrabasti Saha.
2. Admittedly the applicant herein Sanjib handed over the custody of the said child to the petitioner No. 2 who has now re-married with another gentleman and started her new life. It is also told that both the parties severed relationship, but attachment of both the persons of their only issue Shrabasti is obviously there and must be there in ordinary circumstances and naturally Sanjib has duly honoured all commitments in terms of the aforesaid consent decree. By this application Sanjib complains that he had no opportunity to interact with the child in person after departure of the respondent from USA. He could briefly interact with the child during March 2003 when the mutual divorce petition was filed by the parties. Despite repeated effort no effective meeting could take place between Sanjib, father and the said child except on one occasion for a few minutes that too through intervention of the Court in September 2003 when Sanjib made an application before the learned District Judge Barasat who passed the aforesaid consent decree to enforce above terms of settlement regarding access to the child in 2003, It is alleged that series of letters were written by the petitioner requesting the respondent No. 2 to allow him to interact and talk over telephone or to meet, but he was denied such right, which emanates from the aforesaid consent decree. Whenever he comes down to India from States to see the daughter and wants to remain with her in terms of the aforesaid consent decree but the respondent foils such effort by taking away the girl from the residential house of the mother of the respondent. In May 2004 when Sanjib came again to India upon prior intimation to the mother of the child for the periodic visit and again he was denied access and as such he could not meet the girl. He approached Court, at the first instance the ld. Judge passed order which did not help the petitioner, as such he came to this Court in Civil Revisional Jurisdiction against the order of ld. Trial Judge. The Hon’ble Mr. Justice G. C. Gupta gave specific direction upon the learned District Judge to bring about a meeting between the petitioner and the said girl child. However, the effort in terms of the order of revisional Court was not successful as on taking into consideration of the girl’s mind and wishes it revealed that the girl was not inclined to meet or see or to remain with her father. As a result the aforesaid right in terms of the consent decree could not be effectually enforced and this according to the petitioner could happen because of the persistent and constant adverse influence created in the mind of the child to develop antipathy towards the father. The respondent falsely cultivated in the mind of the girl to the effect in the event petitioner meets her she would be forcibly taken away and she would be beaten up, etc. etc. The petitioner is concerned seriously with the welfare of the child and her long-term mental, moral and physical development. He feels her welfare is in jeopardy. Despite the agreed terms Sanjib has not been furnished with any intimation regarding education, all care of the said daughter. Very recently Sanjib came to learn that the said flat has been sold at an undisclosed price. The fund earmarked for the child’s education has not been invested or spent in a proper manner.
3. Having heard the learned Counsel for the parties and examined the materials placed before me the issues involved in this case are as follows. Whether the order passed on joint petition by the learned District Judge of 24 Paragans at Barasat in Matrimonial Suit 108/02 can be enforced and/or executed by this Court in exercise of jurisdiction under Clause 17 of the Letters Patent read with the provisions of Guardians and Wards Act, or not. If so, whether the petitioner is entitled to such relief as prayed for. No doubt the compromise decree apart from provision of the law has created right in favour of the petitioner, father. The relevant clause being clause 8(b) of the order passed on Compromise is set out hereunder:
8(b) The father of the child, the petitioner No. 1, will have the right to see and/ or meet the child at her residence as and when required subject to the convenience of the chid and her custodian mother, the petitioner No. 2.
4. Ordinarily this matter would have been moved before the learned District Judge at Barasat, 24 Paraganas who has passed the order like previous occasion, but the petitioner this time has invoked jurisdiction of Clause 17 of the Letters Patent, which is quoted hereunder:
17. Jurisdiction as to infants and lunatics.- And we do further ordain, that the said High Court of Judicature at Fort William in Bengal shall have the like power and authority with respect to the persons and estates of infants, idiots, and lunatics, within the Bengal Division of the Presidency of Fort William as that which was vested in the said High Court immediately before the publication of these presents.
5. The Language of the said Clause no doubt expressly empowers this Court to exercise jurisdiction relating to the persons and estate of infants. But question has arisen whether the word ‘infant’ covers the girl who is minor and aged about more than 12 years but less than 18 years in this case, or not.
6. In the clause 17 the word “infant” has not been defined specifically. When there is no definition or expression in a particular Act the normal rule of interpretation is the meaning and expression given either in the cognate or similar enactment or of dictionary meanings can be an aid. In the interpretation of statute by Maxwell (12th Edn.) can also be useful guide in this case.
7. In the Halsbury’s Laws of England (4th Edn.) in Volume 24th Article 410 has defined the word ‘Infant’ as follows:
A person attains full age on attaining the age of eighteen. This provision applies for the purposes of any rule of law, and, in the absence of definition or of any indication of contrary intention, for the construction of ‘full age’, ‘infant’, ‘infancy’, ‘minor’, ‘minority and similar expressions in any statutory provision, whether passed or made before, on or after 1st January 1970, and in any deed, will or other instrument of whatever nature not being a statutory provision made on or after that date.
8. A person who is not full age may be described as a minor instead of as an infant. It is seen in this Article and the aforesaid passage that a person who is not of full age may be described as a minor in stead of as an infant. In advance Law Lexicon of P. Ramanatha Aiyar’s Vol. 2 the word ‘infant’ has been defined as follows:
Infants : Upon attaining eighteen or twenty-one years of age in certain cases, (See Indian Majority Act) a person is said to ‘attain full age’ or ‘attain his or her majority’. Until the attainment of that age a man or woman is an infant or minor, and the period between birth and the attainment of full age is the period of infancy or minority. (Mathews’ on Young Person, Eversley’s Domestic Relation, Benjamin on Infants, Trevelyan on Minor). The law knows of no distinction between infants or tender and of mature years.
9. In the Concise Oxford English Dictionary (13th Edition) at page 725 it has been defined amongst other a person who has not attained legal majority.
10. Having regard to the aforesaid study of meaning of words ‘infants’ it seems to me that word infant is not different and separate connotation from the word ‘minor’, namely a person who has not attained majority. In my view word ‘infant’ is one way of expression of the word minor. Accordingly I, hold that the girl here can be treated to be infant so as to bring the operation of the provision under Clause 17 of the Letters Patent.
11. Now next question is whether this Court can exercise jurisdiction in relation to a matter which ought to have been entertained and considered by the District Judge by virtue of aforesaid clause 17 read with Section 3 of Guardians and Wards Act.
12. Mr. Kar for respondent has said that the words “within the Bengal Division of the Presidency Fort William” shall be construed to mean within the territorial limit of Ordinary Original Jurisdiction of this Court. It cannot run beyond the territory of this Court in its Ordinary Original Jurisdiction. He says that this Court has no jurisdiction at present to entertain in view of the creation of City Civil Court Act and by virtue of subsequent amendment of the City Civil Court Act.
13. On the other hand Mr. Mitra, for the petitioner has said that it is clear from Section 3 of the Guardians and Wards Act, which has saved the jurisdiction of this Court under Clause 17. It is amply made clear that words within the Bengal Division of Presidency of Fort William is intended to mean beyond the territorial limit of this Hon’ble Court but within the jurisdiction of the then Bengal division of the Presidency now State of West Bengal. But in view of creation of the City Civil Court for Calcutta District this Court may not be a principal Civil Court of ordinary jurisdiction to entertain this matter which however could be entertained by the district outside Calcutta and can also be entertained concurrently by virtue of Clause 17 of this Court,
14. The provisions of Clause 17 owes origin from Clause 16 of the first Letters Patent 1862 which in its turn had origin from Clause 24 of Charter of Calcutta Supreme Court being the corresponding provisions. Now the question is whether by virtue of Clause 17 this Court can grant relief on this application or not. The scope and extent of the power of the High Court under Clause 17 came to be examined by a special Bench decision of the Bombay High Court reported in AIR 1941 Bom 397. Lord Chief Justice Beaumont in his greatly research oriented judgment examined the scope and history of similar provision of Clause so far Bombay presidency is concerned at page 339 (column 1) His Lordship held amongst others as follows:
The second question, whether this jurisdiction extends to minors who are British subjects residing outside the limits of such original jurisdiction, depends on the Charters which have conferred jurisdiction upon this Court. Under the amended Letters Patent of 1865, Clause 17, it is ordained that the High Court of Judicature at Bombay shall have the like power and authority with respect to the persons and estate of infants, idiots, and lunatics within the Bombay Presidency as that which was vested in the said High Court immediately before the publications of these presents.
When one turns to the Letters Patents of 1862 which were in force at the time when the Amended Letters Patent were granted, one finds that clause 16 of those Letters Patent ordained that the High Court of Judicature at Bombay shall have the like power and authority with respect to the persons and estates of infants, idiots, and lunatics, whether within or without the Presidency of Bombay, as that which is now vested in the said Supreme Court at Bombay.
That no doubt, throws one back to the powers of the Supreme Court and it is argued that the powers of the Supreme Court were limited to minors resident within the ordinary original jurisdiction. If that were so, I should be of opinion that Clause 17, Amended Letters Patent of 1865 and clause 16, Letters Patent of 1862 conferred upon the High Court a more extensive jurisdiction than that which the Supreme Court had possessed, because both those clauses refer to minors within the Presidency of Bombay, and the only way in which on that hypothesis effect could be given to those words would be by holding that the Letters Patent conferred upon the High Court’s powers over infants, idiots, and lunatics within the Presidency of Bombay similar to those exercised by the Supreme Court within the town and island of Bombay. But, in my opinion, it is not correct to say that the Supreme Court’s powers over minor were limited to minors within the town and island of Bombay. The power in relation to minors is granted by Clause 37 of the Supreme Court Chapter of 1823, which follows immediately after clause 36 conferring equitable jurisdiction upon the Supreme Court.
By Clause 37 the Supreme Court of Judicature at Bombay was authorised to appoint guardians and keepers for infants and their estates, according to the order and Court observed in that portion of Great Britain called England. I need not refer to the rest of the clause which deals with lunatics. Now, it will be observed that, that clause imposes no territorial limitation. But it is argued that we ought to refer back to Clause 23 which confers jurisdiction on the Supreme Court in relation to civil suits, and it is said that jurisdiction does not extend beyond the town and island of Bombay. In my opinion there is no justification for limiting the words of clause 37 conferring jurisdiction in respect of minors by reference to any other clause. The reference to the jurisdiction exercised in England seems to me to show that the jurisdiction, which it was intended to confer on the Supreme Court, was jurisdiction exercised the powers of the Crown as parents Patrice, those powers being exercised in England at first by the Lord Chancellor, afterwards by the Court of Chancery, and at the present time the Judges of the Chancery Division. In my view, Clause 37 conferred similar powers upon the Supreme Court, and, if that is so, there was no reason for restricting the powers to part only of the Bombay Presidency, since no other Court in the Presidency possessed such powers and no question of conflicting juris-diction could arise. The powers now existing under the amended Letters Patent, in my opinion, extended to persons under disability wherever in the Presidency they may be found, provided they are subjects of the British Crown.
15. The language of clause 17 of Letters Patent 1865, and also the Supreme Court as far the Bengal division of the Presidency of Fort William are same with those of the Bombay Division. It is the historical event therefore, Supreme Courts in three different Presidency towns by the Charter were established, thereafter three chartered High Courts were established by first Letters Patent 1862 followed by 1865. I with respect following the aforesaid interpretation of the corresponding Clause 17 of Bombay division hold that the jurisdiction conferred upon this Court is not restricted to the territory of Presidency town of Calcutta, but extend to Bengal Division of the Presidency of Fort William meaning thereby throughout State of West Bengal. The phrase ‘shall have like power and authority’, means the power and authority over the subject-matter, not restricting to territory.
16. The decision of this Court cited by this Court was not approved nor it was taken to be an authority on the question of jurisdiction by the said Special Bench judgment of Bombay High Court. Justice Kania (as His Lordship then) in the same judgment considered the decision of this Court cited by Mr. Kar expressed his own views in extenso. His Lordship considering the said decision of this Court and the decisions of the other High Courts came to the same interpretation as that of Chief Justice. Under those circumstances I am unable to accept the argument of Mr. Kar that scope and purview of Clause 17 of Letters Patent restrict to Presidency town of Calcutta meaning thereby within the city of Calcutta in its Ordinary Original civil Jurisdiction. I feel this provision is independent of Clause 12 of the Letters Patent. Precisely for this reason under Section 3 of the Guardians and Wards Act, 1890 power under Clause 17 of Letters Patent of the High Court has been carved out and kept untouched.
17. Accordingly I hold this Court has jurisdiction co-extensively with the District Court at Barasat to entertain this application. The petitioner here asked for discharge and removal of the respondent from acting as Guardian of the minor person and the property and to give physical custody of the minor to the petitioner as well as property standing in her name and for appointing the petitioner as the guardian of the person and property of the said girl. In my view the aforesaid relief cannot be granted as prayed for as by the consent decree and terms of settlement the petitioner has agreed to keep the girl in the custody of the respondent. This Court cannot treat this matter as an independent one. This application can be treated to be one for enforcement of the said order of learned District Judge. The petitioner is simply estopped from making this prayer as he was neither an insane nor minor and keeping his eyes open and understanding everything had voluntarily given and/or relinquish the right of having custody. There is no challenge against the order itself nor do I find any legal ground to challenge, but the Court has enough power to mould relief. It is alleged that in breach of the aforesaid consent order the respondent has deliberately created such circumstances and atmosphere and disabused the mind of the minor girl so that the petitioner cannot have access to the minor girl as a father. Petitioner being a father has right to see, interact and have company of the girl. It is the basic and natural right of father. It is uncontrollable desire of a father to see his progeny and this is why it has been ensured by the Court’s order passed on consent, as such the Court must see that petitioner should get this right to be asserted lawfully as far as practicable. In the affidavit in opposition it has been stated by the respondent that she had no objection but the minor girl is not willing to meet her father. In past, attempt was made to bring about meeting between them so that the father could pass few moments or few days with her but it was futile exercise. I could understand out of sight and out of mind is a natural thing but this is not desirable in a relationship of natural lather and daughter. This phenomenon is temporary one and this case be eliminated with great effort of counselling and taking such confidence building measure which will bring back the relationship and attraction of the daughter to her father.
18. At the ad-interim stage this Court tried to do so and was partly successful but not fully. It is not a case of one day or a few days’ affair it has to be done with constant effort. Now the father is not in India, he has gone away to his place of work in USA, Therefore, I allow the father in terms of the aforesaid consent order to have access to the daughter but not at the place of the mother as it was found to be totally frustrating experience of making arrangement of meeting at mother’s place or in other place. I appoint Smt. Ipsita Banerjee, Advocate as a Special Officer who shall with the help of a lady Counseller Smt, Sunanda Bose a Social Activist to bring about the meeting of the said minor daughter at her place of residence or at the residence of Mrs. Bose whenever he will come down in this country. The respondent shall offer all facilities to the Special Officer and must bring the said girl to the special officer and the said lady counsellor so that girl could be persuaded and/or helped to revive her affinity and/or attraction to her father. The respondent and/or her mother shall not do anything nor disabuses the mind in any manner of the daughter to maintain aversion against her father. The Special Officer shall be paid remuneration assessed at 500 G.Ms. to be paid by the petitioner at the time of visit. However, I do not think to grant any remuneration to Smt. Sunanda Bose but the petitioner shall provide all transport facilities and all other facilities to Smt. Sunanda Bose for persuading the girl to help the Special Officer. Thus both the applications are disposed of.
19. Mr. Banerjee, learned Counsel for the respondent prays for stay of operation of this order. I do not think it fit to grant any stay since it is an implementation of the order passed by the learned District Judge on consent.