In The High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon’ble Justice Sabyasachi Bhattacharyya
C.O. No. 2113 of 2019
With
C.O. No. 1686 of 2019
With
C.O. No. 1692 of 2019
With
C.A.N 7552 of 2019
With
C.O. No. 2581 of 2019
Mr. Jose Antonio Zalba Diez Del Corral, alias Jose Antonio Zalba
Vs.
Mrs. Sucharita Mahapatra
Petitioner‐in‐person : Mr. Jose Antonio Zalba Diez Del Corral, alias Jose
Antonio Zalba
For the opposite party in
C.O. No. 1692 of 2019 and
C.O. No. 2113 of 2019 : Mr. Ashis Kumar Mukherjee,
2
Mr. Ishaan Saha
Hearing concluded on : 03.09.2019
Judgment on : 14.11.2019
Sabyasachi Bhattacharyya, J.:‐
1.
The present four revisional applications, along with the connected application for
bringing on record additional documents, are taken up together for hearing due
to identity of the disputes involved and since all arise from the same proceeding.
2. The petitioner‐father filed an application under Section 25 of the Guardians and
SectionWards Act, 1890 (hereinafter referred to as “the 1890 Act”) for custody of his two
children, being Siddhartha Aupa Zalba, born on November 12, 2006 (aged about
13 years now) and daughter Ikantika Margarita, born on October 10, 2011, (aged
about 8 years now). In the said proceeding, several interlocutory applications
were filed by the father.
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3. C.O. No.1686 of 2019 and the connected supplementary affidavit, filed by the
petitioner‐father, arise out of Order No. 56 dated February 16, 2019 passed in the
said proceeding under Section 25 of the 1890 Act, bearing Act VIII Case No. 88 of
2017. By the said order, the trial court disposed of three applications filed by the
petitioner, respectively dated September 20, 2018, January 2, 2019 and January 7,
2019, all under Section 151 of the Code of Civil Procedure (hereinafter referred to
as “the Code”) by the petitioner‐father, alleging violation of an interim order of
visitation of the children by the opposite party‐mother.
4. The trial court, while rejecting such applications, was of the opinion that
evidence was to be taken for disposing of the said applications, which was not
possible at that stage, but found that there was apparently some disturbance
regarding the visitations and therefore, the parties were directed to carry on
visitation by maintaining peace and tranquility at the place of visitation. The
opposite party‐mother was directed by the trial court to cooperate in the
visitation process properly without creating disturbance or putting any embargo
during the visitation process as per the direction incorporated in Order No.8
4
dated September 18, 2017, Order No.9 dated October 23, 2017, Order No.17 dated
December 21, 2017 and Order No.27 dated June 18, 2018.
5. An advocate, namely, Soma De was appointed as ‘supervisor’, to supervise the
entire visitation process on each of the dates of visitation till the disposal of the
main proceeding. The fees of the said Advocate Commissioner was fixed at
Rs.1,000/‐ per visitation, to be borne by both sides equally.
6. C.O. No.1692 of 2019 has been filed against Order No.69 dated April 30, 2019
whereby, inter alia, an application for interim custody filed by the petitioner‐
father under Section 12 of the 1890 Act was disposed of by holding that it was
not possible to uphold the allegations of the petitioner regarding the habits and
behaviour of the opposite party‐mother without evidence at that stage and
therefore custody of the children could not be taken away from the opposite
party‐mother.
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7. The trial Judge further held that the minors had been examined separately by the
court and it appeared that they were quite comfortable at that stage to stay with
the mother at her present residence at Kolkata.
8. The trial Judge further held that the cases cited by the petitioner support the
petitioner’s contention but could be considered only at the stage of final disposal
of the Act VIII case.
9. As such, the prayer of the petitioner for the interim custody of Siddhartha and
Ikantika was rejected. However, visitation of the children was granted to the
father every Sunday from 2 p.m. to 6 p.m. The father was permitted to take
photographs, hand over gifts to the children and take them out during such
visitation hours. The father was further permitted to visit the children on their
birthdays and during Christmas at the mother’s residence. The trial court went
so far as to permit the children to be taken to Shantiniketan, where the petitioner
resides, for five days during the first week of the summer vacations of the
children.
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10. By the same impugned order dated April 30, 2019, an application of the
petitioner dated May 17, 2018, alleging sexual abuse of the daughter by the son,
was rejected after separate examination of the children by the trial Judge.
However, the trial Judge added a word of caution by directing the mother to be
vigilant regarding the changing nature and behaviour of the children.
11. By the same impugned order dated April 30, 2019, an application filed by the
opposite party‐mother dated February 16, 2018, for maintenance for the children,
was allowed under Section 12 of the 1890 Act, holding that the petitioner‐father
was to pay at least Rs.10,000/‐ per month for the two children.
12. The Special Officer was discharged by the same order.
13. It is relevant to mention here that C.A.N. 7552 of 2019 has been filed by the
opposite party‐mother in connection with C.O. No.1692 of 2019, under Order XLI
Rule 27 of the Code, for bringing on record certain additional documents which
are relevant according to the petitioner. The petitioner filed an affidavit‐in‐
opposition to the said application, against which an affidavit‐in‐reply was filed
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by the opposite party. However, the production of such documents was not
opposed strictly by the opposite party; rather, the opposite party relied on some
portions thereof while advancing arguments.
14. The third revisional application, also filed by the father, bearing C.O. No.2581 of
2019, is directed against Order No.76 dated July 24, 2019, disposing of
applications dated May 6, 2019, May 20, 2019, May 30, 2019 and June 16, 2019, all
filed by the petitioner, primarily alleging violation of visitation orders by the
mother and non‐compliance of the court’s direction in that regard. One of the
prayers in such applications was for shifting of custody of the children on such
grounds. Another prayer made was for a direction on the mother to cooperate
with the petitioner‐father and to take necessary steps for extension of visa and
renewal of passport, particularly for the son of the parties. Another application
dated May 6, 2019 for appointment of an independent supervisor at the time of
visitation and stay of the maintenance order passed by the trial court was also
disposed of by the same impugned order.
15. The court of first instance was of the opinion that the allegation as to violation
could not be taken up at that juncture due to pendency of C.O. No.1692 of 2019.
No shift of custody was granted since Order No.69 dated April 30, 2019, whereby
the interim custody application under Section 12 of the 1890 Act was decided,
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itself was under challenge in this court and the main custody matter was
pending under Section 25 of the 1890 Act in the court below. With regard to the
visa matter, the trial court observed that Order No.39 dated August 24, 2018 and
Order No. 61 dated April 1, 2019 in such regard were to be complied with by the
opposite party‐wife by responding to the calls/messages by the petitioner‐
husband in that regard, in past, present or future.
16. Regarding the appointment of independent supervisor, the trial court also held
that no order could be passed on the said application due to pendency of C.O.
No. 1692 of 2019, which was also cited as a reason for observing that no order
could be passed on the petition for stay of the maintenance order, since the
maintenance order itself was under challenge before this court.
17. It was also observed by the trial court in the same impugned order that the
affidavit‐in‐chief had already been filed in the main Act VIII Case under Section
25 of the 1890 Act and therefore, fixed the next date for tendering the same as
well as documents in connection with main matter.
18. The last revisional application currently under consideration, filed by the
petitioner, is C.O. No. 2113 of 2019, for expeditious hearing of the applications
dated May 6, 2019, May 20, 2019, May 30, 2019 and June 14, 2019. It was admitted
by the petitioner himself, as also submitted by the opposite party, that the said
9
application had became infructuous in view of those applications having already
been disposed of, which disposal itself was under challenge in the other
revisional applications before this court.
19. From the aforesaid discussions, it is seen that the petitioner has been filing
numerous applications, at least six of which were based on the allegation that the
opposite party‐mother has been violating the visitation/custody order passed by
the trial court.
20. C.O. No. 1686 of 2019 deals with three such applications dated September 20,
2018, January 2, 2019 and January 7, 2019, all alleging such violation.
21. C.O. No. 2581 of 2019 relates to four applications dated May 6, 2019, May 20,
2019, May 30, 2019 and June 16, 2019, all primarily alleging the violation of the
court’s order by the mother. In the application dated June 16, 2019, on the basis
of such allegation itself, an additional prayer for shifting of custody of the
children was made. In the application dated May 6, 2019 an independent
Supervisor was sought to be appointed on the same allegation of violation. The
stay of the maintenance order was also prayed for.
22. That apart, the mother’s non‐cooperation regarding obtaining the visa of the
children and renewal of their Passport was also alleged.
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23. It is seen that, vide Order No. 69 dated April 30, 2019, the application under
Section 12 of the 1890 Act, for interim custody itself was disposed of, as such
rendering most of the prior prayers infructuous.
24. In the application dated May 17, 2018, the petitioner‐father brought a serious
allegation of an act by the son bordering on incest, apparently in support of the
prayer of shift of custody to him.
25. Although the revisional applications under SectionArticle 227 of the Constitution of
India were filed by the petitioner in person and the petitioner moved the matter
in person, with the leave of court, all along, the petitioner was assisted in court
by an advocate while moving the matters on most of the dates of appearance.
The opposite party, however, was represented by counsel.
26. The primary line of arguments of the petitioner was that the impugned orders
were in violation of the ‘Convention on the Rights of the Child’, adopted by the
General Assembly of the United Nations and opened for signature, ratification
and accession in its Resolution 44/25 of November 20, 1989, which came into
force on September 2, 1990 in accordance with SectionArticle 49 of the same.
27. Relying on several Articles of the said Convention, the petitioner argues inter alia
that the States which were parties thereto, including India, had agreed on the
provisions therein. The provisions covered several aspects of the rights of
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children, including SectionArticle 18 which provided that the States‐Parties shall use
their best efforts to ensure recognition of the principle that both parents have
common responsibilities for the upbringing and development of the child. For
the purpose of guaranteeing and promoting the rights set forth in the
Convention, the States‐Parties shall render appropriate assistance to parents and
legal guardians in the performance of their child‐rearing responsibilities. SectionArticle
19, among other things, provides that States‐Parties were to take all appropriate
legislative, administrative, social and educational measures to protect children
from all forms of physical or mental violence, injury or abuse, neglect or
negligent treatment, maltreatment or exploitation, including sexual abuse, while
in the care of the parent(s), etc. Relying on SectionArticle 29(1)(c), it is argued that the
child shall be directed to the development of respect for the child’s parents, his or
her own cultural identity, language and values, for the national values of the
country in which the child is living, the country from which he or she may
originate, and for civilizations different from his or her own.
28. The petitioner further relies on guidelines for child access and custody prepared
by a non‐governmental organization by the name of Child Rights Foundation,
apparently approved by the Bombay High Court. Placing the provisions of the
said ‘guidelines’, it is argued that the non‐custodial parent shall be entitled to
weekend visitation every other weekend or every weekend one night every
12
week, beginning from Friday at 6 p.m. and ending on 6 p.m. on Sunday or
Saturday, as the case may be. Visitation during holidays and festival days
excluding the time of travel, comprised of three hours in the least, is also
contemplated therein. Other provisions of additional visitation are also
incorporated in such guidelines. Shift of custody is contemplated in the said
guidelines on several grounds, including child alienation, tutoring, mind‐
poisoning, brainwashing and parental alienation syndrome. Provisions of
overnight access on several occasions as well as weekday visitations, which are
also a part of said guidelines, are stressed upon by the petitioner. Psychiatric and
psychological evaluation of the parents and the child as well as interviewing the
child are also contemplated in the said guidelines.
29. Relying on such Convention and Guidelines, the petitioner argues that the
impugned orders were in direct violation of both of those, depriving the
petitioner‐father of sufficient access to the children, without taking into
consideration the recurring violation of the court’s orders by the opposite party‐
mother regarding visitation.
30. The petitioner further stresses that the petitioner is the natural guardian of the
children and that the opposite party‐mother is a working parent and remains
outside her home most of the day, leaving the children under the care of a maid.
13
31. It is submitted that the children were subject to abuse, including the incestuous
act perpetrated on the daughter by the son, under the custody of the mother.
Such sexual abuse as well as lack of care and the constant tutoring of the children
against the father, it is argued, is sufficient justification for shifting the custody of
the children to the father immediately.
32. It is also indicated by the father, quite candidly, that he is not working at present
and his business stopped due to the excessive litigation he was compelled to
engage in, due to the acts of the opposite party. The petitioner submitted that he
is now on financial support from his mother, living in Spain, and that his mother
insists that she would not be paying for the children unless the petitioner and his
mother also got the company of the children.
33. The petitioner cites judgments reported at AIR 1990 SC 605 (1990) 1 SCC 568
[SectionKubic Dariusz vs. Union of India] and AIR 1999 SC 1149 (1999) 2 SCC 228 [SectionGitha
Hariharan vs. Reserve Bank of India] for the proposition that domestic courts were
to give due regard to International Conventions and Norms for construing
domestic laws, when there was no inconsistency between them.
34. The petitioner cites SectionSheela Barse vs. Secretary Children’s Aid Society, reported at AIR
1987 SC 656 (1987) 3 SCC 50, for the proposition that Conventions ratified by
India for protection of children cast an obligation to implement the principles
14
embodied therein. International Treaties, even if unincorporated into National
law, have a binding effect.
35. SectionVishaka Ors. vs. State of Rajasthan reported at AIR 1997 SC 3011 (1997) 6 SCC
241 was cited for the proposition that International Conventions and Norms
were to be read into fundamental rights in absence of enacted domestic law in
the field.
36. The judgments reported at (1997) 3 SCC 433 and (2005) 2 SCC 436 [People’s Union
for SectionCivil Liberties vs. Union of India and Anr.] were cited, along with AIR 1994 SC
1918 (1994) 3 SCC 1 [SectionS.R. Bommai vs. Union of India] for the proposition that
International Covenants elucidating and effectuating fundamental rights can be
relied on by the courts while passing judgments.
37. The petitioner next cites a judgment reported at (2015) 2 ICC (PH) 583 [SectionRajender
Kaur vs. Narinderpal Singh], wherein a division bench of the Punjab and Haryana
High Court held that the father was the natural guardian of children and unless
he was unfit to have custody, such custody had to lie with the father.
38. Certain general principles as to custody are also relied on by the father
(petitioner) by relying on the judgments of SectionVivek Singh vs. Romani Singh [(2017) 3
SCC 231], Nil Ratan Kundu and anr. Vs. Abhijit Kundu [2008(6) ALD 105 (SectionSC)] and
Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and Anr. [(1987) 1 SCC 42].
15
39. In support of the proposition that a petitioner coming up before the court with
unclean hands should not be granted any remedy (alleging that the opposite
party‐mother had come before the court to resist the revisional applications with
unclean hands, having herself violated court’s orders), the petitioner cites SectionKishore
Samrite vs. State of U.P. Ors. [(2013) 2 SCC 398] and SectionAbhyudya Sanstha vs. Union
of India Ors. reported at (2011) 6 SCC 145.
40. It is thus argued by the petitioner that custody of both the children should be
immediately shifted to the petitioner in view of the conduct of the opposite party
and the harassment and sorry plight being allegedly suffered by the children in
the custody of the mother, as well as lack of care taken by the children by the
opposite party‐mother, since the opposite party left the children under the care
of a maid while she herself was out of the house most of the time.
41. In reply, learned counsel for the opposite party argues that the father himself has
been living in an illicit relationship with a maid and there was a constant traffic
of outsiders to the petitioner’s residence at Shantiniketan, which was squarely
adverse to the safety of the children.
42. The atmosphere in the house at Shantiniketan, which the opposite party alleges
to belong to her but being illegally occupied by the petitioner by virtually
ousting the opposite party, was not at all congenial for the proper and healthy
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upbringing of the children, according to learned counsel for the opposite party.
There was a specific incident when the daughter was sexually abused by an
outsider at the Shantiniketan home, for which complaints were lodged by the
opposite party‐mother. Such unfortunate incident, it is alleged, took place while
the children were in the custody of the father.
43. It is argued on behalf of the opposite party that the test for grant of custody was
not the rights of the parents but the paramount consideration in that regard was
the welfare of the children, contrary to the proposition laid down in the Punjab
and Haryana High Court’s judgment relied on by the petitioner.
44. It is argued on behalf of the opposite party that the opposite party has to work to
earn for a living for herself and her children. It is not the luxury of the opposite
party‐mother to leave the children at home to go out for work but a necessity,
due to the petitioner‐father having utterly neglected to pay a single paisa for the
maintenance of the children. While the petitioner has been filing endless
frivolous applications and litigating as per his fancy, nothing has been done by
the petitioner to take care of the appropriate upbringing of the children, either
financially or by taking appropriate care for the safety and welfare of the
children when they were in the custody of the petitioner‐father.
17
45. It is further argued that the opposite party‐mother gave an alternative option on
each of the occasions when there was a failure on her part to give access of the
children to the father on the appointed date and time, which will be evident from
the extracts of e‐mails and other communications, transcripts of which have been
relied on by the petitioner‐father himself. As such, there has been no violation, let
alone deliberate, on the part of the opposite party at any stage, of the orders
passed by the trial court regarding visitation.
46. Learned counsel for the opposite party‐mother cites a judgment reported at AIR
2010 SC 1417 [SectionAthar Hussain vs. Syed Siraj Ahmed and others] for the proposition
that the petitioner asking for interim shifting of the custody under Section 12 of
the 1890 Act during pendency of a proceeding under Section 25 of the said Act
has to demonstrate compelling circumstances or imminent harm to the children
for getting such an order. It is submitted that no such case has been made out at
all by the petitioner in the present case.
47. The opposite party next cites a judgment reported at (2012) 5 SCC 355 [SectionShaleen
Kabra vs. Shiwani Kabra] for the proposition that it was not in the best interest of
the children to be separated from one another.
48. Learned counsel for the opposite party next cites a judgment reported at 2015 (6)
MhLj 281 [SectionSreenivasagopalan Ananthakrishna vs. Meenakshi Tripurari], wherein it
18
was held that under Section 12 of the 1890 Act, the court has power to grant any
maintenance in the interest or welfare of the minor children, contrary to the
argument of the petitioner in the present case that the court below had no
jurisdiction to grant maintenance under the Act VIII proceeding.
49. The opposite party next cites 2019 SCC OnLine Del 8972 [SectionFarooq Ahmed Shala vs.
Marie Chanel Gillier] to establish that whether the mother was earning or not, the
father had liability to maintain his minor children.
50. Learned counsel for the opposite party next argues that, under Section 13 of the
1890 Act, discretion is given to the court to accept evidence in a proceeding
under Section 12 of the 1890 Act but does not bestow the court with discretion to
permit further evidence to be adduced. As such, no further documents ought to
be considered by this court or the court below. For this proposition, the judgment
of Dhaninder Kumar vs. Deep Chand reported at (1991) 17 ALR 471 is cited. It is
further argued that a proceeding under Section 12 of the 1890 Act is a summary
proceeding and no oral evidence is even required, in support of which the
judgment of SectionMohammad Shafi vs. Shamin Banoo, reported at AIR 1979 Bom 156, is
cited.
51. The opposite party lastly cites a judgment reported at I (1990) DMC 421
SectionMANU/MP/0153/1988 [Gulabsingh vs. Kalpana Bai and Ors.] for the proposition
19
that the power conferred on the court under Section 12 of the 1890 Act is
discretionary and if such discretion is judicially exercised upon considering all
materials and the wishes of the children, there ought not to be any interference in
revision.
52. Two other judgments have been referred to on behalf of the opposite party, being
Rajrani vs. Additional District Judge, No. 2 Koushambi Ors., reported at
MANU/UP/3207/2018 for the proposition that, notwithstanding exclusion of
Order XLI Rule 27 of the Code in revision, the court had inherent power to admit
additional evidence for the ends of justice and SectionMerlin Thomas vs. C.S. Thomas,
reported at AIR 2003 Ker 232, for the proposition that, in the best interest of a
minor girl child, she ought to remain in the custody of her mother.
53. It is seen from the arguments of both sides, that the plinth of the arguments and
counter‐arguments has been the violation of the orders of court by the mother
consistently. The petitioner‐father has alleged in several applications filed in the
court below of such violation.
C.O. No. 1686 of 2019
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54. Taking into consideration C.O. No. 1686 of 2019 first, the same pertains to a
decision on applications alleging such violations only. On facts, such allegations
boil down to oath versus oath. E‐mails and communications, produced and
admitted by both sides, in fact, reveal a reasonable basis for the mother having
deviated from the dates and/or times of visitation on certain occasions, either due
to her difficulties (plausible, since she is working) and on grounds of the
children, illness or otherwise (also feasible explanations).
55. That apart, on almost every occasion of such deviation, the mother gave an
option to the father to have a different date fixed to compensate for the
deprivation suffered by the father on the relevant dates. This appears to have
been a fair and practical approach on the part of the mother and does not
tantamount to willful violation of the orders of the trial court. Even on
preponderance of probability, not taking into consideration the standard of proof
beyond reasonable doubt applicable to penal measures for violation of court’s
orders, the version of the mother seems to be sufficiently plausible to justify the
deviation from the exact dates of visitation. There was thus, in my opinion,
substantial compliance with the trial court’s directions of visitation by the
opposite party‐mother.
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56. In fact, it appears that the father has been, rather hysterically, filing numerous
applications alleging violation on and on, which could perhaps amount to
malicious prosecution, unless there was a benefit of doubt which might be
arguably attributable to the petitioner‐father’s anxiety at not having access to the
children for a long time.
57. As such, the trial court was justified in rejecting the applications regarding
alleged violation of the court’s orders by the mother and no interference with the
order impugned is thus called for.
58. Hence, in view of the discussions above, C.O. No. 1686 of 2019 is dismissed
without any order as to costs.
C.O. No. 2581 of 2019
59. The same logic as discussed in C.O. No. 1686 of 2019, applies to C.O. No. 2581 of
2019 as well, since the basis of seeking shifting of custody immediately was
primarily the violation of the court’s order by the opposite party, which
allegation does not appear to be correct.
60. Moreover, since the question of shifting of custody has been disposed of finally
while adjudicating upon the petitioner’s application under Section 12 of the 1890
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Act vide Order No. 69 dated April 30, 2019, the prayer for shifting of custody, as
made in the interlocutory application, has become infructuous and is barred by
the principle of res judicata.
61. That apart, taking a balanced view, the other ground for such shifting, being that
the opposite party leaves the children under the care of the maid, cannot ipso
facto be a ground for immediate shifting of custody without taking into
consideration the evidence ultimately adduced by the parties in the main
proceeding under Section 25 of the 1890 Act. The trial Judge took pains to
interview the children, together and separately, and was in a better position to
see the demeanor of the children and their wishes in that regard, since the
children are of ages, being 13 and 8 years respectively, sufficient to form an
intelligent preference, which adds weightage to their views, as rightly factored in
by the trial Judge in refusing such shift of custody. Comparing the atmosphere of
the opposite party’s present residence with that of the petitioner, there does not
seem to be enough urgency, or any reason at all for that matter, to shift custody
to the father immediately even during pendency of the main Act VIII proceeding
under Section 25 of the 1890 Act. The father’s assertion of his legal guardianship
of the children would matter little when up against the paramount consideration
of welfare of the children, which does not seem to suffer in any manner in the
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hands of the mother. Rather, repeated shifting of custody would be detrimental
to the educational and mental stability of the children.
62. The prayer for stay of the maintenance order need not be taken up in the present
revision since the maintenance order is itself under challenge in C.O. No. 1692 of
2019 which will be presently disposed of.
63. As far as the alleged non‐cooperation of the opposite party‐mother regarding the
extension of visa and renewal of passport of the children is concerned, the trial
court specifically directed the opposite party to comply with Order Nos. 39 and
61 and issued allied directions, which are sufficient to address the grievance of
the petitioner in that regard. Moreover, the opposite party‐mother is ready to
cooperate with all measures in that regard, even as per her pleadings before this
court. Hence, there is no need for interference with the order impugned in C.O.
No. 2581 of 2019, which is also dismissed without any order as to costs.
C.O. No. 2113 of 2019
64. Since C.O. No. 2113 of 2019 has admittedly become infructuous and not pressed,
and it is evident that the applications, expeditious hearing of which were sought
24
in the court below, have already been decided finally, C.O. No. 2113 of 2019 is
also dismissed without any order as to costs.
C.O. No. 1692 of 2019
65. The present revision is the substantive one among all the four, since the same
primarily deals with the allegations of the petitioner and the prayer for interim
shift of custody. On facts and taking into account the judgment reported at AIR
2010 SC 1417 [SectionAthar Hussain vs. Syed Siraj Ahmed and others], cited by the opposite
party, the petitioner‐father has failed to demonstrate any compelling
circumstance or imminent harm to the children necessitating immediate shift of
custody. In fact, the trial court made it clear in the impugned orders that it was
inclined to take up the main proceeding under Section 25 of the 1890 Act for final
hearing, which was rather being hampered by the repeated applications of
interim nature being filed by the petitioner‐father.
66. Taking the balance of convenience and inconvenience into consideration from
the children’s welfare perspective, the daughter Ikantika apparently suffered
sexual abuse in the hands of an outsider while in custody of her father, the
petitioner, and it appears from the social enquiry reports filed in other
proceedings, also relied on by the petitioner himself, that there is unfettered
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access of outsiders at all times to the residence of the petitioner at Shantiniketan.
It is extremely doubtful whether such an atmosphere is congenial, even leaving
apart the personal matter of the petitioner living in with his maid as alleged, for
the welfare of the children, both of whom are of tender and impressionable
years.
67. In contrast, as apparent from the second social enquiry report produced before
this court, there does not appear to be any specific incident of incestuous act by
the son against his sister. Even a separate interview of the children, taken by the
trial Judge, reveals that the children are eager to live on with their mother. The
trial court was sensitive enough to incorporate guidelines in his order cautioning
the opposite party‐mother to take care and keep a watch on the changing
behaviour pattern of the children, if any. Hence, the alleged molestation of the
daughter in the hands of an outsider and free access of outsiders at Shantiniketan
in the residence of the father is, on the face of it, much more harmful to the
welfare of the children than the alleged incestuous activity of the son, which
allegation really has no reasonable basis. Rather, sufficient explanation has been
furnished by the opposite party‐mother on the basis of the second counsellor’s
report dated August 30, 2018, annexed to her application for additional evidence,
the existence of which was not specifically denied by the father, as to hot water
spilling on the daughter accidentally and the son touching her as a reflex
26
reaction. Such a situation is absolutely plausible and does not amount to any
‘abuse’; rather, is an act of caring for a sibling on the part of the brother (the son
of the parties).
68. It is evident, even from the judgments on that score cited by the petitioner, that
the domestic courts are to give due regard to International Conventions and
Norms when there is no inconsistency between them and domestic laws or if
there is an absence of enacted domestic law in the field. In the present case, the
1890 Act and other allied statutes provide sufficiently to take care of the
provisions as cited from the UN Conventions by the petitioner. Hence, there is
no scope of further relying on such Conventions directly, bypassing the domestic
law operating in the field, particularly since there is no conflict or inconsistency
between the two.
69. Even as per the precedents relied on by the petitioner, International Conventions
may be read into the fundamental rights guaranteed by the Constitution. In the
present case, SectionArticle 227 of the Constitution of India, invoked by the petitioner,
relates to the supervisory jurisdiction of the High Courts over other courts and
tribunals inferior in judicial hierarchy and does not pertain to any action by the
State or any instrumentality of the State, nor does it pertain to general violation
of the fundamental rights of any citizen of India. The petitioner’s present
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applications challenge certain specific orders passed by a competent court of law
within the hierarchy contemplated in the Bengal, Agra and Assam Civil Courts
Act, 1887, under the 1890 Act which is a domestic statute holding the field and
broadly, and in some respects specifically, contain all the guidelines of the UN
Convention cited by the petitioner. As such, there is no scope of applying the
precedents as regards violation of fundamental rights in the present case. Since
the petitioner himself invoked the provisions of the 1890 Act in the court below,
which is a special domestic statute operating in the field of custody and
guardianship, and there arises no ambiguity in interpretation of the provisions
thereof as far as the present case is concerned. Hence there is no scope of looking
into any extrinsic aid of interpretation, in the form of the cited Convention or the
guidelines approved by the Bombay High Court, unnecessarily. In fact, the
guidelines framed by a Non‐Governmental Organization, even if approved by
the Bombay High Court, has no binding value as law in West Bengal and can at
best provide for guidelines in the case of any chink in the available law.
70. The scope of the UN Convention is too general and that of the guidelines
approved by the Bombay High Court operate in a somewhat different field and
is not binding on the trial court or this court. As such, the provisions of the 1890
Act and the precedents operating in the field rendered by Indian Courts are
sufficient to decide the issues involved in the instant lis.
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71. The judgment of Rajender Kaur (supra), delivered by a division bench of the
Punjab and Haryana High Court, in so far as it relates to the father being the
natural guardian, being entitled to custody unless unfit to have custody, cannot
be taken in isolation from the settled legal principle that the paramount
consideration in grant of custody is always the welfare of the children alone.
Custody is not a matter of assertion or affirmation of the rights of the parents,
since children are human beings in their own right and have their own human
rights as much as adults, if not more, as also endorsed by the UN Convention
and Guidelines cited by the petitioner himself.
72. Minors are not the property or chattel of their parents, giving a handle to either
of the parents to exercise such ‘right’ to have custody of the children. The sole
consideration in custody matters is the welfare of the children. In the event the
petitioner relies on the proposition that he is the natural guardian and hence
entitled to have custody of the children irrespective of the welfare consideration,
such proposition has to be taken as ‘per incuriam’, being directly contrary to
several judgments of the Supreme Court, including SectionKirtikumar Maheshankar Joshi
vs. Pradipkumar Karunashanker Joshi [AIR 1992 SC 1447]. In fact, although the said
ratio of the Punjab and Haryana High Court’s judgment might have a persuasive
value, the same cannot bind this court, also being contrary to the Supreme Court
judgment referred to above as well as several judgments of this court itself,
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including that of SectionSajjan Sharma vs. Dindayal Sharma [AIR 2008 Cal 224], which is
binding on this court.
73. Taking a balanced view of the welfare of the children as per the aforesaid
discussions, in the facts of the case, the custody has to remain with the mother,
particularly in view of the settled principle that the custody of a girl child, that
too of the sensitive and tender age of 8 years, which is the age of Ikantika, should
be with the mother.
74. As held in Shaleen Kabra (supra), it is not in the best interest of the children to be
separated from one another.
75. All the instances of alleged violation by the mother regarding the visitation
dates, as evident from the transcripts of communications on social platforms
produced by the father himself, exhibit the bona fide intention of the mother to
offer alternative dates and sufficient justification for the inability of the mother to
produce the children. The opposite party‐mother has to walk a tightrope,
keeping a subtle balance between her work, which is necessary for the upkeep of
her family and the interests of the children on the one hand, and the directions of
visitation issued by the trial court on the other. Hence, the opposite party cannot
be faulted for having violated deliberately any of the orders of the trial court.
Rather, this court finds it harassive on the part of the petitioner to file numerous
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applications alleging violation on similar grounds, showing that, although the
petitioner can afford the luxury of compulsively engaging in litigation, he is not
keen enough to pay for the maintenance of the children and their proper
upbringing, which is further borne out by the admitted position that the
petitioner‐father is not earning, although he had a business previously (which
shows his fitness and capacity to earn) and is now depending on the money sent
by his mother from abroad.
76. As regards the allegation that the opposite party‐mother also did not take any
step regarding the alleged molestation of the daughter in the hands of an
outsider at Shantiniketan, the complaint by the mother to the West Bengal
Commission for Women dated November 8, 2015 about the alleged incident of
molestation on October 28, 2015 supported by the Social Enquiry Report and
Recommendation, annexed at page 12 and 137 of C.A.N. 7552 of 2019, which
incident of molestation has not been effectively controverted by the father as
well, itself shows that the mother took appropriate steps with regard to such
unfortunate incident, although there is nothing on record to show that the father
took care to report the incident and/or follow‐up any complaint lodged by him in
that regard. I choose to look into the documents annexed by both parties in their
pleadings before this court, be it by way of the revisional applications, the
connected affidavits or the application for production of further documents and
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the connected affidavits, since there is no substantive controversy as to the
existence of the documents so brought in and for a proper and complete
adjudication of the matters‐in‐dispute.
77. As far as the allegation of sexual abuse of Ikantika (the daughter) by Siddhartha
(the son) is concerned, the trial court rightly rejected such application upon
separate examination of the children and took a justified approach in directing
the mother to be vigilant regarding the changing nature and behaviour of the
children. Hence, the trial court was justified in rejecting the application dated
May 17, 2018 relating to such alleged abuse as well as refusing interim custody of
the children to the petitioner.
78. In fact, the trial court could not be more liberal in favour of the petitioner as has
been done in the impugned order dated April 30, 2019, by granting visitation to
the petitioner‐father every Sunday for four hours from 2 p.m. to 6 p.m. and
permitting the father not only to take photographs but categorically to give gifts
to the children and take them for outings, as well as to meet the children on their
birthdays and on the occasion of Christmas. The trial court went as far as to
permit visitation of the children to the petitioner at Shantiniketan for five days in
the first week of the summer vacations of the children. In the circumstances, no
fault could be found with the said order and as such, the challenge against the
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order disposing of the application under Section 12 of the 1890 Act and the
application dated May 17, 2018 has to be turned down.
79. However, as far as the application for maintenance is concerned, the same was
filed only on February 16, 2018, while Act VIII Case No. 88 of 2017 itself was filed
long prior to that, which may give rise to an assumption of afterthought on the
part of the opposite party‐mother. However, this is not a final or binding
observation in that regard but only proffers one of the possibilities for filing such
application after almost one year from the filing of the main application under
Section 25 of the 1890 Act. Even on merits, since the trial court came to a finding
that maintenance at the rate of Rs.10,000/‐ per month ought to be given for the
children, the said amount ought to have been distributed equally between the
parents, particularly in view of the mother having an income while the father not
having one allegedly. However, the father cannot be exempted from his liability
to pay half the amount of such maintenance since, despite having a business
previously, as admitted in his arguments in this court, the father chose to stop
such business, allegedly due to the litigations being fought by him, which mostly
seem to be initiated by him on frivolous pretexts, at the drop of a hat, at least as
far as the interlocutory applications are concerned.
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80. That apart, the trial Judge ought not to have discharged the Special Officer
previously. Even if such discharge was done, the trial court ought to have re‐
appointed the Special Officer for the fresh occasions of visitation while disposing
of the application under Section 12 of the 1890 Act, vide Order No. 69 dated
April 30, 2019, in view of the extreme acrimony between the parties and the
allegations and counter‐allegations levelled by the parties against each other
regarding such visitations.
81. It is made clear that the documents produced along with C.A.N. 7552 of 2019
were looked into for the limited purpose of adjudicating upon the revisional
applications, only to the extent that the contents of such documents were not
seriously opposed.
82. In such view of the matter, C.O. No. 1692 of 2019 and C.A.N 7552 of 2019 are
disposed of by modifying the order impugned therein, being Order No. 69 dated
April 30, 2019 passed in Act VIII Case No. 88 of 2017, by directing the petitioner‐
father to pay an amount of Rs.5,000/‐ per month for the maintenance of the
children instead of the amount granted by the trial court and by directing the
trial court to appoint a Special Officer, who may be the Special Officer
previously appointed or somebody else of the choice of the trial Judge, to
supervise each occasion of visitation, at a remuneration to be fixed by the trial
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Judge, to be borne equally by the parties, within a working fortnight from the
date of communication of this order to the court below. It is made clear that the
rest of the impugned order is not interfered with. Hence, all the four applications
under SectionArticle 227 of the Constitution of India, along with C.A.N 7552 of 2019, are
disposed of in the light of the observations made above.
83. Urgent certified website copies of this order, if applied for, be made available to
the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)
