Item No. 2
AD C.O. 2031 of 2016
Tapan Kumar Roy Anr.
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
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.
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
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,
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.
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.
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.)