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Mr. Jose Antonio Zalba Diez Del … vs Mrs. Sucharita Mahapatra on 14 November, 2019

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.

3

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.

5

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.

6

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
7

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,
8

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.

10

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
11

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
16

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
20

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.

21

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
22

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
23

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
25

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
27

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.
28

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,
29

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
30

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
31

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
32

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.

33

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
34

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.)

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