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Tapan Kumar Roy & Anr vs Dr. Tryambak Samanta & Ors on 24 April, 2017

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24-04-17
Item No. 2
AD C.O. 2031 of 2016

Tapan Kumar Roy Anr.
-vs-
Dr. Tryambak Samanta Ors.

Mr. Kamalesh Chandra Saha,
Ms. Payel Mitra.
… for the petitioners.
Mr. Hiranmay Bhattacharya,
Mr. Suman Sankar Chatterjee.
… for the opposite parties.
Mr. Suvodip Bhattacharjee.
… for the Special Officer.

The revisional application being C.O 2031 of 2016 under Article 227 of the

Constitution of India has been directed assailing the order dated 6th May, 2016

passed by the learned Additional District Judge, 1st Court, Barrackpoe in Misc.

Case No. 11 of 2013.

The case arose out of the Misc. Case No. 11 of 2013 filed by the petitioners

as maternal grand parents of the minor male baby, Master Ishan Samanta, for

obtaining order of custody of the minor child in their favour as legal and natural

guardian of his person under the provision of Hindu Minority and Guardianship

Act, 1956. Admittedly, the said male child was about aged 18 months while he

lost his mother on 13th November, 2013.

Mr. Kamalesh Chandra Saha being assisted by Ms. Mitra, learned

Advocate, for the petitioner argued that the learned trial Court instead of

appreciating in true perspective the order dated 22nd July, 2015 passed by this

Court in C.O 1843 of 2014 to hear afresh the matter of interim custody and to
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record appropriate order in the best interest of the minor, by the order impugned,

the scope of visitation to that minor child which was going on has been rather

disturbed. Therefore, argued that the revisional application should be allowed by

setting aside the order impugned and to direct the learned trial Court so that the

appropriate order may be passed for restoration of the visitation right in favour of

the maternal grand parents so that they can also take proper care for well being

of their grandson. Mr. Saha during course of argument ventilated grievance of the

petitioners that the maternal grand parents of the baby had to lodge a criminal

case under Section 498A against the father of the baby and other relatives of the

father which is still pending and since the baby has been staying in the custody

of his father while petitioners had been at the place of the opposite party to see

their grandson, they were assaulted and insulted for which FIR had to be lodged

at concerned police station.

Mr. Hiranmay Bhattacharya being assisted by Mr. Chatterjee, learned

Advocate, representing the opposite party, father of the child, per contra apprised

the court that though the Special Officer has been appointed by an interim order

of this Court for smooth running of the visitation right allowed in favour of the

grand parents, and, since in the main case the evidence from the side of the

petitioner has already been over and the petitioners are to cross-examine the

witnesses to be adduced on behalf of the opposite party, let the main matter be

concluded within a stipulated period without making any disturbance to the

child mind for the present.
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Heard also the learned Special Officer, Mr. Suvodip Bhattacharjee. Perused

also his report submitted in writing on earlier occasion who after taking

abandoned pre-caution arranged to record the footage of the visitation through

CCTV camera. The text of the report also shows that the visitation right was

exercised by the petitioner in a very cordial and enjoyable relationship with the

child.

As it reveals from the impugned order that the child was aged about 4

years at the time of passing of the impugned order, who may be now aged about

5 years or 5 years plus, he, accordingly, is yet to achieve the age of

understandability. Admittedly, the child has been staying under the care and

custody of his father who is a legal guardian under the law. It is also obvious that

in such type of proceeding when the dispute is raised over custody of the minor,

the paramount consideration is welfare and only welfare of the child meaning

thereby under whose custody, or at which place the upbringing of the child mind

including its education and other incidental requirements could have been

developed well. The Court is to take that comparative criterias in deciding the

custody relating to minor child that too relating to a baby of such of an early age.

Pursuant to the direction of the court when the learned trial Court upon

hearing both sides and taking note of the fact as well as the stage of the case and

since during course of hearing neither of the parties could have proposed any

alternative convincing arrangement regarding dates or hours of visitation than

that of the arrangement made by this Court and since also the proposal of the

respondent-father was not accepted by the court since it would not be wise,
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learned trial Court disposing of the application dated 14-08-2015 as was filed

afresh by the petitioners again proposing “so that the petitioner can see the

minor as per order of the Hon’ble Court and/or alternatively to give temporary

custody of the minor ………… under certain terms and conditions”, has not been

answered affirmatively rather learned trial Court fixed up the date for evidence of

the side of the respondent-father.

Within impugned order, as also ventilated by Mr. Saha about pendency of

criminal cases, it appears that learned trial Court also had considered of the

same by observing further that despite of those repeated allegations of violation

of the order of the court, no contempt proceeding was initiated by the petitioners.

Be that as it may, when there is no complaint to take cognizance that

anything is being happened adverse to the welfare of the minor child during

remaining of the child with his father and since the misc. case itself has been

filed by the maternal grandparents for seeking appropriate order for custody of

that minor child with the declaration of guardianship in favour of the petitioners,

and while the said Misc. Case, as it is apprised upon instruction by learned

Advocates of both sides, is pending for cross-examination of witnesses of the

opposite party, then within ambit of Article 227 of the Constitution of India, the

order dated 06-05-2016 by which learned trial Court who is in the seisin of the

matter declined to exercise judicial discretion to record any further order allowing

any interim custody or visitation right save and except granted by this court in

C.O 1843 of 2014, this Court does not find any legal reason to make interference

with the same.

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Accordingly, the order dated 06-05-2016 passed by the learned Additional

District Judge, 1st Court, Barrackpore, in Misc. Case No. 11 of 2013 is upheld.

The revisional application is dismissed with direction to the learned trial Court to

conclude the trial of the Misc. Case within a period of six months from the date of

communication of this order without granting any unnecessary adjournment to

either of the parties and for convenience of all purposes by fixing date of further

evidence of the case preferably once in a fortnight, so that, the learned trial Court

may conveniently record the appropriate final order in disposing of the Misc.

case.

The Special Officer, Mr. Suvodip Bhattacharjee, as appointed in the case by

interim order is discharged.

There will, however, be no order as to costs.

It is made clear that Learned Trial Court shall not be swayed by or

influenced with any observation of this court, if any, made during disposal of this

C.O., rather shall dispose of the case independently on merit.

Urgent certified photostat copy be supplied on receipt of proper application.

(Mir Dara Sheko, J.)
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