Sl. No. 7
F.M.A.T. 868 of 2019
CAN 8895 of 2019
Smt. Sathi Bhattacharyya
Mr. Haradhan Banerjee,
Mr. Suresh Ch. Manna.
….for the Appellant.
Mr. Gopal Ch. Ghosh,
Mr. Arnab Roy.
….for the Respondent.
The appeal is directed against an order dated August 6, 2019, by which the
appellant-father’s application for the custody of the 13-year-old son has been
rejected and the respondent’s prayer in counter-claim for the custody of the child
has been allowed.
Prima facie, the order impugned appears to have dealt with all aspects of the
matter upon taking relevant considerations into account. The court below found
that the appellant’s conduct in removing the child from the Bhatpara residence
could not be condoned and the appellant could not be permitted to retain the
custody of the child after having taken away the child by subterfuge. The judgment
impugned records that it was the admitted position that the appellant had taken
away the son some time in March, 2015 upon representing both to the son and the
respondent herein that the son would be taken to the zoo. However, the appellant
did not return with the son to the residence and was not even available at the
appellant’s regular office on subsequent days when the respondent along with
appellant’s father visited the office in search of the appellant. It is of considerable
significance that the respondent and the appellant’s father continue to reside in the
original home in Bhatpara while the appellant has shifted out of such place and,
upon a false pretext, obtained the custody of the child. It is such custody, deviously
procured, that the appellant wanted to be confirmed by way of the proceedings
under Section 10 of the Guardian and SectionWards Act, 1890.
When this appeal was received on September 5, 2019, this Court was not
inclined to stay the operation of the order impugned and, indeed, it was observed
that the handing over of the custody should take place in accordance with the order
impugned whereupon the propriety of the order impugned could be considered
thereafter. However, Advocate for the appellant insisted that the order impugned
was incurably bad since not only had the appellant’s prayer been declined but
custody had been directed to be made over to the mother when there was no
counter-claim by the mother. It is on such ground that the order impugned was
stayed by this Court’s order of September 5, 2019, as would be evident on the plain
reading of this Court’s relevant order.
It is submitted on behalf of the mother of the child that a counter-claim was
filed and copies of such counter-claim have been made over to the Court. It appears
that a written objection to the counter-claim was also filed by the appellant.
Since the boy is 13 years old at the moment and it is evident from the order
impugned that he has to remain in school for long hours after school is over since
the appellant collects the boy from the school after the close of the appellant’s office
hours, it is more desirable that the boy stays with the mother and the paternal
grand-father at the original Bhatpara home.
The boy must be handed over to the mother by the appellant herein by
September 11, 2019.
Let this matter appear on September 13, 2019. The respondent-mother will
make immediate arrangements to ensure that the minor is admitted in an
appropriate school. The respondent may cite this order before any appropriate
school authority for the purpose of facilitating the boy’s admission.
Urgent certified website copies of this order, if applied for, be made available
to the parties upon compliance with the requisite formalities.
( Sanjib Banerjee, J.)
(Suvra Ghosh, J.)