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Purbayan Chatterjee vs Sanghita Chatterjee on 30 March, 2017

                      IN THE HIGH COURT AT CALCUTTA
                               APPELLATE SIDE

                               C.O. 2558 OF 2016

                            PURBAYAN CHATTERJEE
                            SANGHITA CHATTERJEE


                                                                     Mr. Biswajit Basu,
                                                               Mr. Sharanya Chatterjee
                                                                   ... For the Petitioner.

                                                                Mr. A.K. Bhattacharya,
                                                                 Mr. S. Gangopadhyay
                                                              ... For the Opposite Party.
Judgment On: 30.03.2017

The Court:

      This is an unfortunate litigation between warring parents for custody of the

minor son even after the divorce by mutual consent. The father of the child

initiated a proceeding under Section 25 of the Guardians and Wards Act for

custody of the child, which is admittedly with the mother for his betterment and

welfare. The proceeding faced several round of litigation before the Trial Court as

well as this Court and a contempt proceeding for violation of this order passed by

this Court in an earlier revisional application is pending.

      Shorn of unnecessary details the petitioner is renowned musician and

acclaimed such recognition in the society as sitar player. The father of the

petitioner was also an amateur sitar player and learnt such skill under the

tutelage of two legendary maestros namely Pandit Nikhil Banerjee and Ustad Ali

Akbar Khan. The mother of the petitioner was also an artist of All India Radio
 and performed in Doordarshan on many occasions. The parties hereto, met in a

concert and developed love and affection for each other and ultimately married

under the Special Marriage Act, 1954 on 12th June, 2002. In the said wedlock a

male child was born on 26th June, 2009, who is named Pratham Chatterjee and

is currently seven years of age.

      Subsequenly, the differences in such relationship cropped up and both the

parties decided to live separately and ultimately agreed to dissolve the marriage

by mutual consent and approached the District Judge, Barasat by filing

Matrimonial Suit No. 1843 of 2012. The said suit was subsequently decreed on

June 10, 2013 on the basis of their such consensus. It was averred in the said

matrimonial suit that the petitioner would pay a sum of Rs. 30 lakhs towards the

lump sum as one time payment of alimony and cost of bringing up the minor son

apart from a flat in Eastern High Apartment, Rajarhat, New Town with its

existing furniture and fixtures together with the covered car parking space to be

gifted to the opposite party for her comfort living. The statements made in

paragraphs 14 and 15 of the said application for mutual divorce are the center of

disputes in the present litigation wherein it was agreed that the minor son would

remain in the care and custody of the opposite party till he attains majority and

the petitioner will have a visitation right and right to take the child on holidays

and vacations. The opposite party shall consult the petitioner with regard to all

major issues relating to the minor child's education, health care and extra

curricular activities so that the welfare of the child, which is paramount, is taken

care of.
       The application under Section 25 of the Guardians and Wards Act came to

be filed by the petitioner alleging that the opposite party is neglecting the minor

son and is not properly taking care of. It is alleged that she frequently changed

her job and leads a life of a bohemian roaming here and there in the suspicious

manner and did not spare any time with the minor child. The child used to spend

weekend not only with the petitioner but his grand parents and showed his

indifferent attitude when handed over to the opposite party in the evening of

Sundays. The son was admitted into a heritage school and because of the ill

treatment and behaviour of the opposite party his performance in the school

deteriorated and both the parties were called by the teacher, who pointed out

that though he has a creative mind and potential but he is not performing well

and therefore to be handled with sensitivity. It is further alleged that though the

said some of Rs. 30 lakhs was given to the opposite party for the upbringing of

the child yet she withdrew substantial amount for her use despite fact that the

other expenditures including education fees are paid by the petitioner. The

opposite party is attempting to remove the minor son from the jurisdiction of the

Court and have not been allowed to study in the heritage school and the opposite

party is contemplating to admit him to some other school in violation of the

understanding of the parties reflected in the application for divorce by mutual

consent. In the backdrop of the aforesaid facts, the relief is claimed in the said

proceeding not only for an order restraining the respondents from removing the

minor son from the jurisdiction of the Court and from the school where he is
currently studying but also to produce the same before the Court and to give

interim custody to the petitioner on every Friday evening till Sunday evening.

Apropos the parent proceedings various interlocutory applications under

Section 12 of the said Act is taken out and when the petitioner feels that the

opposite party is attempting to remove the minor son from the jurisdiction of the

Court and refusing to hand over the custody during the weekends. Before the

Court proceeds to pass any interim order and directed the said applications to be

kept on record, the petitioner approached this Court under Article 227 of the

Constitution of India by filing C.O. 1256 of 2016 for interim order. The said

revisional application was disposed of on 20th April, 2016 restraining the opposite

party to remove the minor son from the heritage school and to act in derogation

of Clauses 14 and 15 of the divorce application, this Court further directed the

opposite party to appear before the Trial Court on the date so fixed along with the

child and the Trial Court was directed to dispose of the said application for

interim protection.

According to the petitioner, the said order was communicated but despite

the same there was reluctance on the part of the opposite party in complying the

said order and a contempt application is pending before this Court.

Subsequently, the Trial Court took up the application under Section 12 of the Act

and allowed the same permitting the petitioner to visit the minor son after

consulting with the opposite party according to their choice and desire until

further order and further restrained the opposite party from removing the minor

son from the heritage school. Ultimately the said application is disposed of by
passing the impugned order whereby and whereunder the minor son was allowed

to remain under the custody of his mother till he attains majority. It was further

ordered that the school in which he is currently studying i.e. Delhi Public School,

should not be disturbed as it is in his interest, welfare and betterment and the

petitioner was permitted to visit the minor son on every Fridays starts between 4

to 6 p.m. and was further permitted to take him in his house at 4 p.m. and

return the same within the time indicated therein.

The present revisional application is filed challenging the said order for the

simple reason that it was all along an understanding between the parties that the

child would remain in his interim custody during the weekends and limiting the

time of visitation would not be in the interest and welfare of the child.

At the time of moving the revisional application I decided to interact with

the parents as well the child on September 27, 2016. The matter was thereafter

mentioned because of the ensuing long vacation of the Court so that the interim

arrangement of visitation may not be disturbed. The matter was thereafter listed

on 3rd October, 2016 and the following order was passed:-

“I had an occasion to interact with the parties and the child in my chamber
on September 27, 2016. The revisional application was thereafter adjourned till
November 3, 2016.Both the counsels mentions this matter to be taken up before the
next date fixed by this court.According to the petitioner, because of the ensuing
long vacation of this court there should be an interim arrangement so that the
visitation is not interrupted and/or disrupted from any corner. I have personally
assessed the child during my interaction as well as the parties to the proceeding.

This court feels that the visitation should continue until further order to be
passed by this court which appears to be for the welfare of the child. The father
appears to be a Musician and travels abroad to attend the concert. The child used
to spend time with the grandparents as well during weekend when the father was
available in the town. An apprehension is shown that the visitation to the
grandparents may not be allowed if the father is away from the town. This court
feels that the law does not deter or prevent the grandparents to visit the
grandchild, more particularly, in a society to which all the parties belong.

This court allows the visitation of the grandchild on every weekend, who
shall remain in the custody either of the father or the grandparents and will be
returned to the wife in the evening of every Sunday. Since there are some
sentiments attached to the 2 grandparents during the Puja Vacation, this court also
permit the father and/or the grandparents to spend two days with the grandchild
as may be mutually agreed by and between the parties. Either the father or the
grandparents may take the custody of the child from the mother in the evening of
every Friday and shall return the child to the mother in the evening of the Sunday
before 09.00 P.M..

Let the matter be fixed at 10.30 A.M. on November 3,2016 in the
supplementary list.”

The aforesaid order was passed as I found during interaction with the

minor son that he was not feeling comfortable in studying in the Heritage school

and was happy with the present school i.e. Delhi Public School and narrated the

incidents which he used to face in the erstwhile school. The opposite party was

reluctant in sending the minor son to the house of the petitioner as she does not

want that the child should interact with the grandparents. The grandparents

were also interviewed by me and I found that they have lot of affection with the

minor son and wanted to spend their time during the weekends with him. The

child also did not show any indifferent behaviour or apathy in the company of the

grandparents. The child did not narrate any incident which may remotely

suggest that the company of the grandparents was not in the welfare of the child.

What I perceived during such interaction was that the petitioner and the

grandparents wanted the child to embark his journey in the pursuit of becoming

a great musician; on the other hand, the mother wanted him to become an

engineer and to settle abroad. Both the parties are imposing their aspiration on
the minor son without caring to know his field of interest and his aim in the life.

It is really a misery of life that the parents wanted their child to fulfil their desire

rather than seeking the interest of the child. It would not be wrong to say that

the minor son is being used as a pawn and swinging in lurch between the desire

and aspiration of the warring parents. The child is not a chattel nor a property or

commodity of the parents but should be dealt with extra care and caution, love,

affection and sentiments, which are the virtues of the human life. The art of

parenting the child is not just to provide basic needs of sustenance but to

upbring with morality, ethnicity and good values as a human being.

There is nothing which brindles or fetters the Court in exercising parents

patriae jurisdiction in a matter relating to the custody of the minor child. The

first and foremost consideration which every Court must bear in mind is the

welfare of the child which is paramount. The observation of the Supreme Court

in case of Ashish Ranjan -Vs- Anupama Tandon Anr. reported in (2010) 14

SCC 274 is aptly quoted below:-

“19. The statutory provisions dealing with the custody of the child under
any personal law cannot and must not supersede the paramount consideration as
to what is conducive to the welfare of the minor. In fact, no statute on the subject,
can ignore, eschew or obliterate the vital factor of the welfare of the minor. (Vide
Elizabeth Dinshaw v. Arvand M. Dinshaw
, Chandrakala Menon v. Vipin Menon, Nil
Ratan Kundu v. Abhijit Kundu
, Shilpa Aggarwal v. Aviral Mittal and Athar Hussain
v. Syed Siraj Ahmed

In case of Lekha -Vs- P. Anil Kumar reported in (2006) 13 SCC 555 the

Apex Court held that even the father under the Hindu Law is a natural guardian

of a minor male child yet the consideration which should weigh to the Court is
the interest and welfare of the child despite the shortcomings either in the

behaviour or otherwise in the following words:-

“20. A man in his social capacity may be reckless or eccentric in certain
respects and others may even develop a considerable distaste for his company
with some justification but all that is a far cry from unfitness to have the natural
solace of the company of one’s own children or for the duty of bringing them up in
proper manner. Needless to say the respondent husband, in this case, seems to be
anxious to have the minor child with him as early as possible in order to look after
him properly and to provide for his future education. The feelings being what they
are between the respondent and the appellant we think it is also natural on the
part of the husband to feel that if the minor child continues to live with his former
wife, it may be brought up to hate the father or to have a very adverse impression
about him. This certainly is not desirable. Needless to say, this Court is not called
upon to find that the respondent husband has been entirely blameless in his
conduct and few occasions referred to in this case and by the boy at the time of
interview, it is not the duty of this Court even to ascertain whether the respondent
is a responsible and good citizen and a preferred individual. Many people have
shortcomings but that does not imply that they are not deserving of the solace and
custody of their children.

21. However, in the present case, we have to decide in the interest of the child
as to who would be in a better position to look after the child’s welfare and
interest. The general view that the courts have taken is that the interest and
welfare of the child is paramount. While it is no doubt true that under the Hindu
law, the father is the natural guardian of a minor after the age of six years, the
court while considering the grant of custody of the minor to him has to take into
account other factors as well, such as the capacity of the father to look after the
child’s needs and to arrange for his upbringing. It also has to be seen whether in
view of his other commitments, the father is in any position to give personal
attention to the child’s overall development.

22. As indicated hereinbefore, we have spoken to the child who, in our view, is
intelligent and appears to be capable of expressing his preference. In fact, he has
in no uncertain terms indicated his desire to stay with his mother. His mother’s
second marriage, instead of proving to be a disadvantage, has proved to be
beneficial for the child who seems to be happy and contented in his present
situation and we do not think it would be right to unsettle the same.”

In the recent times the concept of larger family is eroding fastly. The

concept of nuclear family is developing immensely and the bondage with the

grandparents is diminishing because of the conservative mind of the people of

the society. It is often said that the grandparents love the grandchild the most in
preference to their own children. The grandparents inculcate the values in life

and strengthen the upbringing of the child to become a good samaritan from

their experience, perseverance and ups and downs which they faced in their

lives. The society cannot grow without inculcating the sense of responsibility,

which a person owes to it since childhood.

In the instant case there is no sign in the minor child that he is

uncomfortable or do not like the company of the grandparents in absence of the

petitioner when he is away in attending the concerts outside the city. Minor son

was happy and enjoying the company of the grandparents and there is no

justification in the allegation of the opposite party that he is being tutored

against her.

Furthermore, under the arrangement the child stays during the weekends

with the petitioner or the grandparents and most of the times he is living with the

opposite party and therefore the allegation above is baseless and sans truth. The

sudden change of arrangement, which continued for a long time is certainly not

in the interest and welfare of the child.

This Court does not find any justification in the act of the opposite party in

showing reluctance to send the child during the weekends to the house of the

petitioner and the grandparents when such arrangements continued since after

the decree for mutual divorce. The Trial Court did not record any special facts to

discontinue with such arrangement and restricting the visitation to 5 (five) hours

on every weekends.

The impugned order is thus modified to the extent that the opposite party

shall hand over the interim custody of the minor child either to the petitioner or

the grandparents in the evening of every Fridays. The child shall remain in such

custody during the weekends and the petitioner or the grandparents shall return

such custody to the opposite party in the evening of every Sundays.

The revisional application is thus disposed of.

However, there shall be no order as to costs.

(Harish Tandon, J.)

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