Calcutta High Court Smt. Anamitra Dutta Gupta-vs-Soumey Dutta Gupta on 27 February, 2001
Equivalent citations:AIR 2001 Cal 88
Author: P K Samanta
Bench: P K Samanta
Prabir Kumar Samanta, J.
1. The very sensitive issue as to whether a natural mother should be allowed custody of a minor female child aged about 6 years at present for two days in a week, while the parents are fighting litigation amongst themselves, is the subject matter of this revisional application.
2. The matrimonial background of the parents of the child is not too long and seems to have estranged 10 years after the marriage while the only female child born out of the wedlock was about 5 years old. The wife/ petitioner alleging both physical and mental torture by her husband and his parents lodged a complaint on 5-2-99 with the concerned Police Station under Section 498A/406/34 of the Indian Penal Code against her husband and inlaws. On the basis of the said complaint a police case was instituted. It also appears from the records that the husband/ opposite party at the same time filed a suit for restitution of conjugal rights against his wife. It is an admitted position that the aforesaid minor child is in the keeping of her father at present. The mother of the child alleged that she was compelled to leave the matrimonial home without her daughter because of physical and mental tortures perpetrated by her husband and inlaws. Accordingly, the wife filed an application under Section 97 of the Code of Criminal Procedure, 1973 for issuance of a search warrant and for recovery of her minor daughter from the custody of her husband, before the learned Sub-Divisional Judicial Magistrate. The said application did not succeed. The wife/petitioner moved a criminal revisional application before this Court challenging the order of dismissal of her petition under Section 97 of the Code of Criminal Procedure by the learned Magistrate. Almost at the same time the husband/opposite party filed an application under Section 7 of the Guardian and Wards Act, 1890 before the learned District Judge, Barasat which wa registered as Act VIII Case No. 114 of 1999.
3. In the aforesaid Act VIII case father/ opposite party filed an application under Section 12 of the Guardian and Wards Act, 1890 for an inter-locutory order restraining the wife/petitioner from disturbing his custody of the child pending disposal of the petition under Section 7 of the said Act. The wife/petitioner opposed the said petition under Section 12 of the said Act filed by the father/opposite party and also made a counter-claim under Section 12 of the said Act for an interlocutory order for custody of her child from Friday afternoon till the morning of next Monday in every week. It appears that the above criminal revisional application by the wife being C.R.R. No. 49/2000 was disposed of by a learned single Judge of this Court on 4-2-2000. The learned Judge did not interfere with the order passed by the learned Magistrate dismissing the mother’s petition under Section 97 of the Criminal Procedure Code but observed that the mother’s affection for her child cannot be ignored and on humanitarian grounds she can meet her child and at the suggestion of the parties made an order that the mother will meet her child at the residence of one Sri Manik Goswami a common relation of both the spouse on every Thursday from 9 a.m. to 6 p.m. Since the aforesaid petition under Sections 7 and 12 of the Guardian and Wards Act, 1890 as above were pending before the learned District Judge, Barasat so the learned Judge of this Court in disposing of the aforesaid criminal case specifically directed that such arrangement of meeting of the child by the mother in the residence of Mr. Manik Goswami will continue till the matter is decided by the competent Civil Court.
4. In these state of things the interlocutory application filed by the father/opposite party under Section 12 of the said Act and the objection along with the counter-claim filed thereto as above by the wife/petitioner in the aforesaid Act VIII case were taken up for hearing. The learned District Judge dismissed the prayers of the mother as he was of the opinion that in view of the order of disposal of the criminal revision case as above by this Court he had no authority to pass any interlocutory order on the said application of the mother. The said order was challenged by the wife/petitioner in an earlier revisional application which was disposed of by this Court by directing the learned District Judge, Barasat to dispose of the application under Section 12 of the said Act filed by the husband as well as the counter-claim filed by the wife as above afresh on merits without being influenced by the order passed by this Court in the Criminal Revisional Jurisdiction.
5. In these circumstances, learned District Judge, Barasat, took up the petition under Section 12 of the said Act filed by the husband/opposite party and the objection thereto filed by the petitioner/wife along with the counter-claim made under the provisions of Section 12 of the said Act as above for hearing and disposed of the same by an order dated 13-9-2000, which has been impugned in this revisional application by the wife/petitioner. By the said order the custody of the child by her father was not disturbed and the arrangement as above made by the learned Judge of this Court for visiting the child by her mother in the aforesaid Criminal Revision was maintained. Thus, the prayer of the wife/petitioner for custody of her child as above in every weekend was refused, The learned District Judge, Barasat, based his reasonings as under :–
“By making such a prayer the opposite party wants to be satisfied with the custody only in which case the benefit and welfare of the child can hardly be guaranteed. The child should be allowed to move on her own sphere freely without being influenced by any adverse matrimonial relations which is going on in between the parties namely the parents of the child. Thus, it would be wise not to disturb the child at every point of time or in other words when the child is remaining in the custody and care of the father and his family it would be befitting for her to go on prosecuting her studies, though at infant stage, under the care and custody of the father. No circumstances are forthcoming at this early stage to conclude that the father and other inmates of his house are incompetent to take proper care of the child for all purposes. At the same time custody of the child with the opposite party during holidays of the school in a week would not serve any better purpose. Rather it would affect the proper education of the child. This Court is inclined not to make any arrangement, where the child in question who has got no option in the matter, to be an instrument in the hands of the parties only for the fulfilment of their demands over the child.”
6. In the first place the reasonings of the learned District Judge, Barasat as above cannot be better described than strange. It defies all conscience when the learned District Judge observed that benefit, and welfare of the child can hardly be guaranteed if the custody of the child is given to her natural mother for two days in a week. Such may be the personal perception of the learned Judge but on the facts of this case such an inference can hardly be drawn. The father did not even allege that the mother of the child is incapable of looking after has for two days in a week, or if such custody is given to her then there is every likelihood of the child being either neglected or spoiled for any reason whatsoever. It was also not established that she is in any way unfit to look after her child during the weekend or that she is of an Impeachable character. One must not forget that there is no substitute on earth for mother’s love and affection for her child. No amount of love and affection by the father and his family members can compensate the mother’s love, care and affection for her child. Except for the very unnatural circumstances a mother is always a better provider of love, care and affection for her child than a father. Therefore, a child should not be deprived of her mother’s company unless there are grave and weighty considerations requiring otherwise. In this case materials and evidences constituting grave and weighty consideration against the mother of the child are conspicuously absent.
7. In this connection reference may be made to the observations made by the Supreme Court in the case of Rosy Jacob v. Jakob A. Chakrammakkal applied in the case of Thrity Hoshie
Dolikuka v. Hoshiam Shavaksha Dolikuka, .
The observations read as under (Para 19 of AIR 1982 SC) :–
“Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessary lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish and who in addition because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels, nor are they mere playthings 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 balance 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.”
8. The aforesaid observations of the Supreme Court apply in full force in this case. It is so also applicable, as in the petition filed by the husband under Section 12 of the said Act it was stated that while the mother left her matrimonial home and went to stay in her father’s house it was he who expressed to his father-in-law that it will be difficult for the baby daughter to stay without her mother and that the baby daughter became impatient because of the absence of her mother in the matrimonial home. It was his pleasing that he took his baby daughter to his father-in-law’s house to bringback his wife to his place of residence. It was also categorically stated in his said petition that considering the welfare and mental condition of the child he left the baby daughter with his wife and came back from his inlaw’s house, while the wife assured and represented to him that she will send back the baby daughter, to him on 2nd May, 1999. However, it was alleged that the wife failed to send his daughter back and as such the husband went to his wife and took back the daughter on 2nd May, 1999 in the night for the purpose of her attaining the school. It is his allegations in the said section that he contacted his wife over phone with a request to come back and to stay with him at least for the sake of her baby daughter but she refused to honour such request.
9. In view of the aforesaid averments made by the husband himself it is beyond comprehension as to how the learned Judge arrived at a conclusion that the benefit and the welfare of the child can hardly be guaranteed if her custody is given to the mother for two days in a week. It is also beyond comprehension as to how the child’s free movement of her own would be curtailed by being influenced by adverse matrimonial relations of her parents if she remains with her mother for two days in a week. Similarly, it is also beyond comprehension as to how such free movement of the child in her own sphere would not be influenced by adverse matrimonial relations of her parents if she remains in the absolute custody of her father. Rather it would not be unnatural for the child to develop an aversion for her mother, if she is compelled to live all through in the family atmosphere of her father where there would be every possibility of being influenced with the versions of her father and his family members against her mother. At this stage the parties have not gone into evidence in the suit for restitution of conjugal rights instituted by the father. Therefore, the Court did not have the occasion to have a glimpse on the state of affairs which resulted in a breaking point of the matrimonial relations between the parties, who were responsible for such a situation and the reasons for which the restitution of the family life of the parents has not been possible even now. Both the husband and wife are working persons and in their absence their respective aged family members both male and female look after the child. It was not established either in evidences or from any materials on record that if the child remains with her mother for two days in a week at the weekend her education will be jeopardised. It also appears from the cause title of this revisional application that the residences of the husband and wife are not seperated by a long distance. If it is the fact that this minor daughter is being taught by a private tutor after school hours then also such arrangement can be made by requiring her private tutor to come to the residence of her mother in the weekend if necessary.
10. In this connection it may be stated that at the tender age of a child paramount consideration should also be given to the healthy mental development of a child rather than confining her development in bookish knowledge by requiring her to study at this tender age all through out the week without leaving any room for fun and play. Educational development of the child should not be at the costs of his/her playful joyous moments of childhood. At the same time it is also of paramount consideration that the innocent mind of a child should develop with equal love and respect to her parents so that she is not brought up with some partisan attitude in life. Such healthy growth of mind is possible only if the child gets love, affection and company of both her the parents. She will then learn to love and respect both her parents. Such healthy growth of her mind will not project her in later life as the product of a broken home. She will be able to carry herself in the society with healthy attitude in life. On the contrary, it is certain to impaire if the child is kept in the constant custody of one of her parents who are litigating on the matrimonial disputes.
11. In the instant case, the incapability, unworthiness of the mother and her family members to look after the child for two days in a week have not been established. There is no suggestion whatsoever that if the child remains in the company of her mother and grandparents for two days in a week then there is likelihood of being absolutely influenced against his father in an unnatural way. Similarly, there is also no material and/or the circumstances which can compel the Court to assure itself that this child’s mind will remain equally respectful and lovable towards her mother as it were before even if she is denied the company of her mother for two days in a week. In this case, for these reasons, striking of a balance on the issue relating to the custody of a minor female child while the parents are litigating is an absolute necessity. Such balance could only be struck if both the parents have the company of their daughter and the daughter has the company of both.
12. I did not interview the minor daughter. Because a minor cannot understand his own wellbeing and what are necessary for natural and healthy development of her mind at this tender age. Therefore she was not asked about her preference of living. Because in the facts and circumstances of this case it could not be said with certainty that such preference is expressed would have been free from any influence whatsoever.
13. In all these considerations, I am of the opinion that the learned District Judge, Barasat failed to strike a just and proper balance between the welfare of the minor child and the rights of their respective parents over her. I, therefore, set aside the impugned order and dispose of the revisional application with a direction upon the husband/opposite party to hand over the child to the wife/petitioner in the morning of very Saturday in a week for taking her to her present residence and to keep her there till the evening of next Sunday. The wife/petitioner will send her back to her husband’s place of residence by 8.30 p.m. in the evening of Sunday.
14. This arrangement will continue every week irrespective of any vacation of school or holidays and till the disposal of the petition under Section 7 of the aforesaid Act by the learned trial Judge.
Urgent xerox certified copy of this judgment if applied for be supplied to the parties as expeditiously as possible.