IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
HON’BLE MR. JUSTICE HARISH TANDON
AND
HON’BLE MR. JUSTICE ABHIJIT GANGOPADHYAY
F.M.A.T. No. 1053 of 2018
With
C.A.N. 893 of 2019
SectionShekhar Kumar Roy
-vs-
Jitendra Nath Dey Anr.
For the Appellant : Mr. Nooruzaman,
Mr. B.K. Bose.
For the Respondents : Mr. Uttam Kumar De,
Ms. Writi De.
Heard on : 14.08.2019 and 11.09.2019.
Judgment on : 24.09.2019.
Abhijit Gangopadhyay, J :
1. This appeal is against order No. 19 dated 13th July 2018
passed by the Additional District Judge, 3rd Court Howrah in
Misc. Case No. 34 of 2016 which was an application under
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Section 19 of the Guardians and SectionWards Act, 1890 (hereinafter,
referred to as the said Act).
2. The appellant Sekhar Kumar Roy married one Soma Roy, the
daughter of the respondents herein namely Jitendra Nath Dey
and Sandhya Dey. The marriage was solemnised on 31st May,
2000. Out of the wedlock a female child was born on 2nd June,
2007. The wife of the appellant Soma died of cancer on 7th
October, 2009 living behind the minor daughter of less than 2
years of age.
3. The legal battle is in respect of title of guardian (the father) to
custody of ward and appointment of maternal grand-parents of
the minor as guardian of the minor.
4. After filing of the application (mentioned as Misc. Case No. 34
of 2016) by said Jitendra Nath Dey and his wife Sandhya
Dey, (the grand-parents of the minor) under the said Act the
appellant herein filed one application under Section 25 of the
said Act in that Misc. case for custody of the minor child.
5. The said application under the said Act for appointment of
guardian and the application of the appellant herein under
Section 25 of the said Act for custody of the child was taken up
together by the Court below and by order No. 19 dated 13th
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July, 2018 the said Misc. case was disposed of by granting
interim custody of the child to the grand-parents (the
respondents herein) and by the same order the application for
custody of father of the child (i.e. Shekhar, the appellate
herein) under Section 25 of the said Act was rejected.
6. In connection with the said appeal before this Court an
application for injunction being CAN 893 of 2019 has also
been filed. By consent of the parties the appeal and the
application were taken up together for hearing by this Court.
7. Though many grounds have been taken by the appellant in the
appeal, the only question which has been argued by the
appellant before us is that the court below committed error in
giving much importance to the statement of the child ignoring
other factors and only the question of welfare and wellbeing of
the child has been considered.
8. The facts of the case are follows :
a) According to the respondents herein their daughter Soma
Roy was given in marriage with Sekhar Kumar Roy. It was
Sekhar Kumar Roy’s second marriage. Out of the wedlock a
female child (Sataguna Roy) was born in the year 2007. In
the year 2009 respondent’s daughter expired from cancer
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leaving behind the daughter who was then less than two
years old. After the death of Soma the appellant herein
(Sekhar) admittedly kept the child in the custody of the
respondents and Sekhar married again within 10 months
from the date of the death of Soma.
Though the appellant has raised serious objection as to the
observation of the Court below in counting the number of his
marriage (three marriages) we find that the statement made by
the respondents herein in the said application (in paragraph 6
thereof as to the 2nd marriage of appellant with Soma) was not
specifically denied by the appellant herein in his written
statement (in paragraph 13 thereof). Thus we also hold that
after death of Soma the appellant herein contracted his 3rd
marriage.
This 3rd marriage of the appellant was dissolved on
18th September, 2012 under Section 13-B of Hindu Marriage
Act 1955.
b) It is not clear to this court precisely when the child was
taken by her father after his 3rd marriage to his place of
residence at Panchet in the State of Jharkhand. The
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appellant is an employee of Damodar Valley Corporation in
Panchet, Jharkhand.
c) It is the allegation of the appellant that at the time of his
illness in the year 2012, when he was hospitalized the
respondents herein forcibly took away the child from his
custody and thereafter did not allow him to meet the child
and subsequently they demanded Rs. 2 lakh for returning
the child to the custody of the appellant. In this regard the
appellant lodged an FIR in Jharkhand and a criminal case
was initiated against the miscreants including the
respondent No.1 herein and respondent No. 1 was sentenced
by the judgement and order of the Sessions court in the
District of Dhanbad with rigorous imprisonment which
judgment and order is now under the appeal.
9. In respect of the said application for appointment of guardian
under the said Act the appellant raised objection by alleging
that the respondents do not have proper means for upbringing
the child and the child is being tortured and neglected in their
custody and therefore, the child should be given to his
custody as he is her biological father and therefore natural
guardian in the eye of the law.
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10. The Court below considered the entire matter, interacted with
the child who had at the time was 11 years of age.
11. The child had intimated the Learned Judge of the Court below
that she wanted to stay with her maternal grand-father and
grand-mother (i.e. the respondents herein) and did not want to
reside with her father as her father contracted another
marriage after death of her mother and never gave her any
wearing apparel and fooding, educational expenses and
medical expenses.
12. The Court below after considering a large number of decided
cases on the subject both of our country and of England and
USA and on the basis of the interaction with the child and
after hearing parties has allowed interim custody of the child
to the respondents herein till the majority of the child and
until further order from any competent Court of law. The court
below made it clear that the present custody of the child was
not being disturbed. The application for the father for the
custody of the child was rejected.
13. In the course of the hearing of the appeal this Court time and
again on different dates had wanted to know from the
appellant whether he was ready and willing to spend money
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for better Schooling of the child and for her better
maintenance while in the custody of the respondents with
visitation right to which reply was always avoided on behalf of
the father and on the contrary a condition was put by the
appellant that if the custody was granted to him then only he
would spend money for the child. This Court also explained to
the appellant’s counsel the method to create the emotional
bonding gradually between the father and the minor daughter
and how better education could be imparted to the child
without uprooting the child from the present situation but the
appellant refused to accept all such suggestions and remained
obdurate with his condition as stated above.
14. Now, regarding the merit of the case we find that in such
cases of custody, guardianship etc. of a child the paramount
consideration is the welfare and wellbeing of the child. In a
judgment of this Court reported in (2017) 2 CHN 559
(SectionPurbayan Chatterjee -vs- Sanghita Chatterjee) it has been
held that “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”. In the said
judgment this Court also held that there is nothing which
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“brindles or fetters the Court in exercising parens patriae
jurisdiction in a matter relating to the custody of the minor
child” and referring to several judgments of the Supreme
Court it was further held that the “sudden change of
arrangement which continued for a long time is certainly not
in interest and welfare of the child”.
15. Here in this case from the facts and circumstances as above
and in view of the wish expressed by the child before the trial
Judge we do not want to uproot the child from her present
situation by interfering with the order passed by the trial
Judge.
In this respect the learned Advocate of the respondent have
relied upon the case of Rosy Jacob reported in (1973) 1 SCC
840 and drew our attention to paragraph 15 of the said
judgment which is again quoted by the Hon’ble Supreme
Court of India in Criminal appeal No. 838 of 2019
(Tejaswini Gaud and others. -vs- Shekhar Jagdish Prasad
Tewari and others.). Relevant part of Paragraph 15 of the
said judgment of Rosy Jacob is required to be quoted :
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“15. … The
children are not mere chattels: nor are
they mere play-things for their parents.
Absolute right of parents over the
destinies and the lives of their children
has, in the modern changed social
conditions, yielded to the considerations
of their welfare as human beings so that
they may grow up in a normal balanced
manner to be useful members of the
society and the guardian court in case of
a dispute between the mother and the
father, is expected to strike a just and
proper balance between the
requirements of welfare of the minor
children and the rights of their
respective parents over them”.
16. From the facts and circumstances of the case as appears
from the pleading of the parties before this Court and also the
Court below, from the submissions made by the parties and
from the response of the appellants to the Court’s questions as
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has been stated above, we find that the appellant father is
much more interested in seeing that his own wish prevails over
the fundamental question of welfare and wellbeing of the child.
We thus do not find him a fit person with whom the welfare
and wellbeing of the child would lie though he is the natural
guardian of the child in the eye of law. In the facts and
circumstances of the case, this Court holds that the appellant
is not entitled to the custody of the ward. We do not find that
the Court below has committed any mistake in assessing the
situation and in proper understanding of the child’s wish and
welfare and wellbeing who prefers staying with her maternal
grand-parents. From the whole episode we find that real
reflection of love and affection of a father to his child i.e. the
emotional bonding required in the development of the child is
conspicuous by absence between the appellant and his
daughter.
17. The appellant has described the statement of the child
before the Judge as to not providing her any clothing and other
basic needs to her by her father as tutored evidence, but the
father has failed to show that he ever sent any money to the
custodian of the child for spending for the purpose of the child
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while she remains in the custody of her maternal
grandparents. Before this Court also he has not expressed any
willingness to spend any money for the child if the child
remains in the custody of her grandparents, where the child
wants to stay instead of staying with her father.
18. In such circumstances we do not find any merit in the appeal
and we direct the appellant to keep an amount of
Rs. 1,00,000.00 (Rupees one lakh only) in fixed deposit within
2 months from the date of this order in any Nationalized Bank
in Kolkata in the name of the child for a period of 10 years
from the date of creating the fixed deposit and to handover the
said fixed deposit receipt to the Registrar General of this Court
within a period of 2 weeks from the date of creating the fixed
deposit and the Registrar General shall, in turn, handover the
same to the respondents No. 1 and 2 within a period of four
weeks from the date of receipt of the fixed deposit from the
appellant. We make it clear that this amount will be over and
above the maintenance to be paid to the child by the
appellant/father if any order in this regard is passed by any
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competent Court of law and this amount will never to be
adjusted with the said amount of maintenance, if any.
The appeal is dismissed.
No costs.
I agree.
(Harish Tandon, J) (Abhijit Gangopadhyay, J)