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Shekhar Kumar Roy vs Jitendra Nath Dey & Anr on 24 September, 2019

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
2

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
3

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
4

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
5

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.

6

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
7

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
8

“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 :
9

“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
10

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
11

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
12

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)

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