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Sri Aloke Sarkar vs Smt. Anindita Sarkar Nee Basu on 23 December, 1994

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  Calcutta High CourtCalcutta High CourtSri Aloke Sarkar vs Smt. Anindita Sarkar Nee Basu on 23 December, 1994Equivalent citations: (1995) 1 CALLT 436 HCAuthor: S BanerjeaBench: S BanerjeaJUDGMENTSamaresh Banerjea, J.1. The instant revisional application is directed against Order No. 9 dated 26.9.1994 passed by Shri S. B.Aich, learned Additional District Judge, 13th Court, Alipore in Matrimonial Suit No. 15 of! 1994. allowingthe application of the opposite party for custody of a male child under Section 26 of the Hindu Marriage Act,1955.2. The aforesaid suit, which is now pending before the Trial Court, was filed by the husband, the presentpetitioner against the opposite party for dissolution of marriage on the alleged ground of cruelty and desertion.3. In the aforesaid suit the wife being the opposite party herein, filed an application under Section 26 of theHindu Marriage Act for custody of the male child of the parties aged about 6 years. In the aforesaidapplication made by the opposite party it was, inter alia, pleaded by the opposite party that after driving outthe opposite party from her matrimonial home, the husband being the present petitioner has forcibly detainedthe child aged 6 years, born out of the lawful wedlock of the parties; that the child was admitted in SunshineSchool at Kurseong by the petitioner against the wish of the opposite party only to separate the child from themother, although she was very careful and attentive to the child and due to nature of his pre-occupation the(father could not devote any time for the upbringing of the child; that because of separation from the motherthe child was forced to live in a school hostel feeling emotional starvation, a situation which is not at allconducive to the happy and healthy growth of the child; as the opposite party is not getting any access to thechild due to instruction given by the petitioner to the school authorities the natural upbringing and growth of the child is being disturbed and if such a situation is permitted to continue for a longer period, the same shallcause permanent damage to the over all intellectual, mental and physical growth of the child; that thepetitioner has recently come to know that the child has been brought to Calcutta and is at present staying withthe father; under such circumstances the custody of the child should be restored to the mother for propermaintenance and education as during the formative years of the development of mental faculty of the child,the company of the mother is very much needed.4. Subsequent to the filing of the aforesaid application the petitioner filed a supplementary to such applicationbefore the Trial Court incorporating additional facts and/or statements in connection with the aforesaidapplication under Section 26 of the Hindu Marriage Act. In the aforesaid supplementary number of allegationswere made by the opposite party against the petitioner. It was pleaded inter alia that the husband is addicted toalcohol and leads unethical life and passes his days with bad women; that the husband keeps association withculprits and bad women and in such atmosphere the child cannot get proper education; that the husband isinferior in educational qualification to the wife who is an ordinary graduate, whereas the wife is MasterDegree holder, along with other certificates; while wife belongs to a society of culture, the husband is not thehusband stays in a Railway Quarter unauthorisedly for the purpose of leading an unsocial life with anotherlady, and therefore, such an atmosphere is not at all congenial to the proper development of the child; thefamily members of the husband are uneducated and there is no member in his family except the old and agedgrandmother and grandfather of the child who cannot look after the child properly; but on the other handfamily members of the wife are highly educated and well established.5. For all these reasons, it is pleaded in the said supplementary that the welfare of the child and his propermental and physical development can only achieve if the child remains with the mother. Sri Aloke Sarkar vs Smt. Anindita Sarkar Nee Basu on 23 December, 1994Indian Kanoon - http://indiankanoon.org/doc/184555/1  6. The aforesaid application was contested by the husband by filing objection.In such objection, the husband after denying the allegations made against him pleaded inter alia that the childwas admitted to Sunshine School at Kurseong in November, 1992 for which he had to be kept in hostel for thebetterment of his education as atmosphere at the home in Calcutta is not at all congenial for which the wife isresponsible; due to abnormal situation created by the wife at Kurseong the husband was compelled to take thechild back to Calcutta and to admit him at 'Dolna', a reputed school in Calcutta; the child is quite healthy andhappy with the father and there is every possibility for him sustaining mental growth; that the irregularity of the life style of the wife coupled with her irrational temperament and whimsical conduct and behaviour willseriously tell upon the child's future; before deciding the question of custody the paramount interest to betaken into consideration is the welfare of the child and since the child is already habituated and acclamatisedin the life-style of a peaceful discipline and congenial atmosphere in the custody of the father, there is noreason why the wife will have custody of the child.7. The learned Additional District Judge, 13th Court, Alipore, after hearing both the parties and consideringall the relevant materials on records including the application made by the wife for custody under Section 26of the Act as also the supplementary application, the objections filed by the husband, has allowed theapplication made by the wife giving the custody of the child to the mother keeping in mind the welfare of thechild.By the said order the learned Judge directed to give custody of the child from the father to the mother within15 days.8. It appears thereafter, the husband filed an application before the Trial Court itself for stay of the operationof the order, to enable him to go to the High Court which prayer was rejected.9. The husband thereafter, moved this Court during long vacation before the vacation Court ex-partewhereupon a Civil Order was issued directing maintenance of status quo by N. K. Mitra, J. The wife thereaftermade an application for vacating interim order also before the vacation Court and myself had the occasion tohear such an application of vacating interim order sitting in vacation. On 28th October, 1994 the applicationwas heard by me during vacation when a prayer for adjournment was made on behalf of the husband on theground the Advocate on Record as well as the learned Advocate leading him will not be present in Calcuttabefore 3rd November, 1994. However, considering the facts that the notice of such application was servedunder the order of the Court upon the husband fixing 28th October, 1994 as the date for hearing and the prayerfor adjournment was seriously opposed by the mother inter alia on the ground that the whole purpose of thehusband is to avoid handing over the custody of the child to the mother in spite of the Court's order and afterconsidernig the fact that at that time the hostel was closed and the child was with the father and the motherwas not given access to the child for quite some time past and also considering the welfare of the child who isonly 6 years old. I directed that the matter would be heard on 3rd November, 1994 and without prejudice tothe rights and contentions of the parties the husband shall handover the child to the mother at her Dum Dumresidence and the child shall remain with the mother till 3rd November, 1994 subject to any order that may bepassed on the said date and the mother would bring the child in Court on 3rd November, 1994 and she shallnot take the child outside Calcutta till 3rd November, 1994.10. On November 1, 1994, the learned Advocate appearing for the opposite party drew attention of the Courtthat the order passed for handing over the child on 28th October, 1994 was not complied with, whereupon thelearned Advocate appearing for the husband submitted that the husband was unable to comply with such orderas the child was refusing to go to the mother. As I was not satisfied with such explanation prima facie I issueda rule for contempt suo moto against the husband for wilful and deliberate violation of the order dated 28thOctober, 1994 passed by me. The contempt rule is still pending. Since there was every likelihood for thehusband to continue with the breach of the order passed on 28th October, 1994, I further directed that theOfficer-in-Charge, Narkeldanga Police will take the child from the father and hand over his custody to the Sri Aloke Sarkar vs Smt. Anindita Sarkar Nee Basu on 23 December, 1994Indian Kanoon - http://indiankanoon.org/doc/184555/2  mother when the father may accompany the child. On November, 3, 1994 it was submitted by theOfficer-in-Charge, Narkeldanga Police Station inter alia that although the child was not willing to go to themother, he was taken from the custody of the father and while he was being taken to the mother in a taxi hewent on crying and ultimately fainted, for which he had to be admitted to B.R. Singh Hospital.11. Thereafter, I directed that the mother should be permitted to see the child at the hospital and after the childis found by the Doctor to be fit for release, the mother and the Officer-in-Charge, Narkeldanga Police Stationshould be informed and the said Officer-in-Charge will hand over the child to the mother, the said order waspassed without prejudice to the rights and contentions of both the parties and subject to further order that maybe passed. The husband petitioner preferred an appeal against the said order before a Division Bench of thisCourt presided over by the Hon'ble Chief Justice, and the Division Bench on the submission of both theparties that they would live together and settle their dispute, disposed of the said appeal without deciding thequestion of maintainability.12. As the matter related to custody of the child of 6 years only and the paramount consideration in suchmatter is the welfare of the child and as the affidavits were complete, being of the view that the matter shouldtake utmost priority, 3rd November, 1994 was fixed for final hearing for the revisional application itself andfinal hearing started on that day. But although submission of the learned Advocate appearing for thepetitioner/husband could be completed, because of the paucity of time, the learned Advocate appearing for thewife could not complete his submission and therefore the matter was heard-in-part and ultimately hearing wasconcluded on November 24, 1994.13. Mr. Bikash Ranjan Bhattacharjee, learned Advocate appearing for the petitioner/husband has assailed theorder inter alia on the ground that the learned Judge acted illegally and with materially irregularity in holdingthat a person, engaged in the standing business gets little time to devote to his child. It is contended by Mr.Bhattacharjee that merely because a person is a businessman, the same does not necessarily mean that he isunable to devote time to the child and there being no evidence before the learned Judge to that effect, thelearned Judge acted illegally and with material irregularity in coming to such finding. It has been furthersubmitted by Mr. Bhattacharjce that in the matter of deciding the custody of a child paramount considerationis the welfare of the child and such welfare of the child can best be achieved in the instant case if the childremains with the father who admittedly is also the natural guardian under the Statute, and there is no reasonwhy the father should be deprived of the custody of the child especially when the wife has not been able tomake out any case as to why the father should be deprived of the custody of the child. It has been submittedthat this aspect was not considered by the learned Judge at all and therefore there was a jurisdictional error onthe part of the Trial Court.14. It has been further submitted by Mr. Bhattacharjee and upon which most emphasis has been laid by Mr.Bhattacharjee repeatedly, that in the matter of such consideration it is also necessary to ascertain from thechild his own wish although the learned Judge examined the child in his chamber the result of suchexamination has not been recorded in the order passed by the learned Judge and the same was also a jurisdictional error on the part of the Trial Court. Referring to a large number of decisions of the SupremeCourt as also of different High Courts Mr. Bhattacharjee repeatedly argued that under such circumstances thisCourt should examine the child and ascertain his wish. It was submitted that if it is done, it will be seen thatchild is quite happy with father and he himself is totally against going to the mother and accordingly custodyof the child should remain with the father which is quite in consonance to his welfare, both physical andmental and such position therefore should not be disturbed by the Court by giving custody of the child to themother.15. Mr. Ganesh Chandra Panda, learned Advocate appearing for the wife, opposite party on the other hand has joined issue with Mr. Bhattacharyya, on a number of points. Firstly, it has been contended the instantapplication being revisional application under Section 115 of the Code of Civil Procedure, not only thepetitioner must satisfy the Court that there is an error of jurisdiction within the meaning of Section 115 of the Sri Aloke Sarkar vs Smt. Anindita Sarkar Nee Basu on 23 December, 1994Indian Kanoon - http://indiankanoon.org/doc/184555/3  Code of Civil Procedure, in addition to that he must satisfy because of passing of the impugned order, aserious prejudice has been caused to the petitioner but in the instant case there has been neither any jurisdictional error committed by Trial Court nor the petitioner has made out any case even, that the impugnedorder if allows to stand, will cause serious prejudice to him and therefore this application is liable to bedismissed on such ground alone.16. It was further submitted by Mr. Panda that in any event, the learned Judge after taking into considerationall relevant factors has allowed the application after considering the welfare of the child and the learned Judgerightly held that the very fact that the child is kept in a hostel coupled with the fact that the father isbusinessman would indicate that he has little time to devote to the child. It is further submitted that paramountconsideration being welfare of the child it has to be kept in mind that for proper and healthy development of the child, both mental and physical, parental love is an absolute necessary and for child of such tender age likethis instant case love of mother is more important than that of the father and therefore there was nothingwrong in the order passed by the learned Judge. Mr. Panda also disputed the allegation that the learned Judgehas not recorded his finding after examining the child. It has been submitted by him although in impugnedorder the learned Judge may not have dealt with the same elaborately, it was clearly stated by the learnedJudge that the child has not yet developed sense of understanding. It has been further submtted by Mr. Pandathat the Court is not bound to examine the child for ascertaining his wish relating to the matter of his custodynor the same is absolutely necesary in all. cases although it may be desirable in certain cases and in the instantcase such examination is wholly unnecessary because of the fact that the child who is only 6 years old is notcapable of forming independent and intelligent opinion. It has been further submitted such examination maynot reveal the correct state of affairs as to the opinion of the child since the mother is not being given anyaccess at all to the child for quite some time past and the child is being tutored by the husband creating anadverse feeling against the mother. Mr. Panda has also relied on a large number of decisions both of theSupreme Court as also of different High Courts for the purpose of substantiating his arguments.17. In the matter of deciding the custody of the child, whether under the Hindu Marriage Act, or under theGuardians and Wards Act or Hindu Minority and Guardianship Act, the paramount consideration is thewelfare of the child. Such position of law, now being well settled through judicial precedence both of theSupreme Court as also of different High Courts can hardly be disputed by anybody and indeed in the instantcase, the same is not disputed by either of the parties.18. Keeping such principles of law in mind if the order passed by the Trial Court is examined, it will appearthat the learned Judge was quite conscious of such principles of law and after considering all aspects of thematter has allowed the application granting custody to the mother for welfare of the child. After consideringthe said order and the submission of the parties carefully I do not find any jurisdictional error committed bythe learned Judge warranting interference by this Court in its revisional jurisdiction under Section 115 of theCode of Civil Procedure.19. One of the reasons for which the learned Judge has given custody of the child to the mother is that thechild is only 6 years old and yet in such tender age admittedly he has been kept in a school hostel by the fatherwho is a businessman getting little time to devote to the child and that such hostel life deprived from parantalcare is not always conducive to proper physical and mental growth of the child and for a child of 6 years thelove of mother is more important for sometime than the father. The learned Judge in allowing such custody tothe mother has also taken into consideration the fact that the child's education can be better looked after if hestays with the mother, as in the family of the mother educational atmosphere prevails because of theeducational qualification of the mother and her parents.20. I am unable to accept the contention of Mr. Bhattacharjee the learned Counsel appearing for thepetitioner/husband, that the impugned order of the Trial Court suffers from jurisdictional error as in absenceof any evidence the learned Judge could not have come to a finding that the father being a businessman getslittle time to devote himself to the interest of the child. Sri Aloke Sarkar vs Smt. Anindita Sarkar Nee Basu on 23 December, 1994Indian Kanoon - http://indiankanoon.org/doc/184555/4
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