Partha Sarathi Dutt v. Lopamudra Dutt — 1995 DIGILAW 103 (CAL)

JUDGMENT Bijitendra Mohan Mitra, I.: The present revisional application is directed against Order No. 19 dated 3.9.1994 passed by the' 9th Court of Additional District Judge at Alipore in Misc. Case No.6 of 1994. The said Misc. case is one under s. 26 of the Hindu Marriage Act, 1955 since amended. The Misc. case is off shoot of a matrimonial proceeding being Matrimonial Suit No. 18 of 1994 filed by the husband against the wife for the relief of restitution of conjugal rights. The petitioner/father being aggrieved by the impugned order has come to this Court. The mother of the child is a Hindu and a citizen of India and the father is also a Hindu but a citizen of Canada. The husband petitioner is a permanent resident of Canada being engaged in his avocation of gainful occupation. In the said Misc. case a prayer was made to the effect so that the petitioner father may have access to the child and petitioner's mother, Smt. Minati Dutt and his married sister, Smt. Sukanya Dutt are allowed to see the child once in a week during the petitioner's absence from this Country. This Court has elicited the information that the sister of the petitioner, Smt. Sukanya Dutt, as a married person having a child of her own and she also stayed for some time in Bollivia. 2. The moot point for controversy in this proceeding is as to whether the petitioner's mother and sister can be allowed access to the child of the parties. It is to be remembered that in a matrimonial proceeding under the Hindu Marriage Act, a right of custody and/or access is being asserted by the father petitioner. There is no other proceeding pending either for custody or for guardianship. 3. Section 26 of the Hindu Marriage Act provides that the Court will pass such orders upon application by petition for the purpose about custody, maintenance and education of the minor children. In a matrimonial proceeding the parties are partners in life and they are parties to the marriage and nobody else is a party in the proceeding and can figure as a party in a pending lis. In a matrimonial proceeding the parties are partners in life and they are parties to the marriage and nobody else is a party in the proceeding and can figure as a party in a pending lis. The term children in this Section will include not only legitimate children, but those deemed to be legitimate by operation of s. 16 in case of void and voidable marriage as also the children, the marriage of whose parents was the subject matter of any proceeding under this Act. Although the word 'children' in a statute prima face 'means legitimate children but the same meaning is displaced in the context in which the word appears in this Section and it embraces a wider category other than the legitimate children. It may also tend to include within its ambit the illegitimate children. The test of jurisdiction under s. 26 of the Hindu Marriage Act is a parenthood and not the legitimacy of the child, but the child in relation to whose custody, maintenance and education, an order is made must be a child of the parties to the proceeding under this Act. Here by the prayer contained in the petition under s. 26 of the Hindu Marriage Act attempt has been made to extend its ambit beyond parents and the parties in marriage and it tends to include third parties. On plain reading of s. 26 of the Hindu Marriage Act it does not appear that the same can be extended to persons who are not parties to the suit or proceeding or who do not figure as parents of the child. Here the Claim put forward in favour of the grand-mother and father's sister is beyond the purview of the limits of s. 26 of the Hindu Marriage Act. The said claim of custody of outsider may be considered in a proceeding for guardianship or custody in an independent lis, but not in a matrimonial lis. As such this Court because of its appreciation of the conspectus of dimension of s. 26 of the Hindu Marriage Act does not feel that the said Section 'applies to outsider, those who are not parties to the matrimonial lis or who cannot claim their locus standi as parents of the child whose custody is in question. The prayer as contained in the petition under s. 26 filed before the Trial Court out of which the connected Misc. The prayer as contained in the petition under s. 26 filed before the Trial Court out of which the connected Misc. case arises, appears to be misconceived and accordingly, the Trial Court did not entertain the plea of the petitioner to accede to the claim of the grand mother and father's sister. 4. At the time of hearing before this revisional forum the father's sister of the child, namely, Smt. Sukanya Dutt, does not contend very seriously to press her claim either for visit and/or custody of the said child. S. Sri K. S. Roy, the learned Counsel appearing for the petitioner, has however pressed the prayer of access of the grand-mother, Smt. Minati Dutt and her interview with the Child during the period of absence of the father from this country on the ground that the child must be made to be groomed in the shade of his roots. According to Mr. Roy it is a peculiar case where prayer of the grand-mother should be acceded to in view of the 'peculiar facts and circumstances of this case that father is almost a permanent absentee from this country. In aid of his submission Mr. Roy has referred to the decision in the case of Poonam Dutt vs. Krishan Lal Dutt & Ors., reported in AIR 1989 SC 401 . The said decision of the Apex Court has been pronounced in the background of a habeas corpus proceeding where permission was given to the child's grand-father to take the child every weekend. On the factual score the cited decision stands on a different footing as the present one is a proceeding under s. 26 of the Hindu Marriage Act, but the cited decision is an outcome of preceding for habeas corpus. Here the restrictions are envisaged under the particular provision of the special statute, namely the s. 26 of the Hindu Marriage Act where parties can only apply and none others either for custody or for access to the child. Mr. Roy also referred to the case of 'Smt. Shanti Das & Anr. Here the restrictions are envisaged under the particular provision of the special statute, namely the s. 26 of the Hindu Marriage Act where parties can only apply and none others either for custody or for access to the child. Mr. Roy also referred to the case of 'Smt. Shanti Das & Anr. vs. Gum Chand, reported in AIR 1956 Pun 234 ,which is a proposition under s. 17 of the Guardians & Wards Act and the Court held that second marriage of the father does not per se rendered him unfit to be the guardian of his son on the basis of the suspicion that the real father and his step mother are not likely to treat the minor properly in future. It does not apply, nor does it fit in with the facts in the background of the legal conspectus of s. 26 of the Hindu Marriage Act in the present case. Mr. Roy has also tried to advance an argument that even in s. 26 of the Hindu Marriage Act, the paramount consideration should be the welfare of the child and there should be no trapping of restriction to have a truncated projection of the picture of the welfare of the child. This Court has also given its anxious consideration to the consideration of the welfare of the child. 6. Mr. Bhaskar Bhattacharyya, the learned Advocate, appearing on behalf of the opposite party/mother has drawn the attention of this Court from the relevant annexures appended to the Affidavit-in-Opposition and he has contended that grand-mother of the child is an actuated by motivation of avarice towards the opposite party. She is alleged to be the central figure of the controversy and it has also been suggested that father's sister has been attempted to be brought in with purposive design. Mr. Bhattacharyya has drawn attention of this Court to series of letters written by' the grand-mother of the child, viz. Smt. Minoti Dutt, which are addressed to her son, the petitioner. A reference was made from a letter dated 1st Baisakh, corresponding to English Calendar 15.4.1982 where the father of the opposite party has been asked to construct the ground floor of a proposed house at Taratala. The said claim as mentioned in the letter written Smt. Minati Dutt is in view of station of life of her son, who is the petitioner. The said claim as mentioned in the letter written Smt. Minati Dutt is in view of station of life of her son, who is the petitioner. The mother of the petitioner in another letter dated 29.09.84 has made a grievance that as fruits to her expectation were not sent to her husband and therefore the petitioner was asked not to send even one paisa to the house of the opposite -party. A further reference was made to a letter dated 24.3.1984 where smt. Minoti Dutt insisted on her daughter-in-law to stay with her and even she did not agree to the frequent visits of the opposite party to the house of her parents. The son was also asked not to visit the place of his wife and in law. The in laws were described by Smt. Minati Dutt as ungentlemanly and cunningly. Mr. Bhattacharyya, the learned Advocate has hinted that the motivation is lure of money on the part of Smt. Dutt and not affection for the grandson. It is not out of context to refer to the well-known decision of Rosy Jacob' case where the Apex Court has opined that children are not like chattels. They are not mere playmates of their parents and parental rights should be relegated to the background keeping in view of the welfare of the child. A grievance has been canvassed before this Court that on the pretext of visiting the child the petitioner has taken help of the police and other rough and tough elements who raided the house of the child where he was living at the material point of time. The child became a pathetic victim of fear, because of entry of police and alleged highhandedness on the part of the other accomplices. The mother/opposite party pleaded with this Court for referring the child to a psychoanalysts and in fact suggestion is being contemplated so that the child can be put temporary under the guidance of a Psychoanalyst. The child by name of Sabyasachi Dutt was born some time on 5th July, 1989 in Canada. The mother/opposite party came back to India some time on December, 1990. Before that the mother/opposite party used to live in Canada with the child, so a considerable period has lapsed by passage of time and child is now growing in age. The child by name of Sabyasachi Dutt was born some time on 5th July, 1989 in Canada. The mother/opposite party came back to India some time on December, 1990. Before that the mother/opposite party used to live in Canada with the child, so a considerable period has lapsed by passage of time and child is now growing in age. In view of the taking note of the contention stands taken by the respective parties it does not appear to be free from doubt as to how far paramout consideration of the welfare of the child demands that the child should be visited by the grand-moij1er and the aunt. 7. Accordingly, this Court is not inclined to interfere with the impugned order. By the impugned order petitioner father has been given access when he will be in the city of Calcutta in Indian on a tour, but the same should not be attempted to be enforce by police and other rough and tough elements in consideration of the mental condition of the child who has been interviewed by this Court. A reference may be made to an unreported decision of this Court in the case of Smt. Vma Talapatra where this Court has opined that ordinarily police should not be allowed to disturb the emotional poise and tranquility of a child. This Court as an observer to the social scenerio has felt that all subordinate Courts should be cautious and circumspect in dealing with the tend emotion of children very carefully as friends of the society. If necessary the wings of "Leviathan" should be clipped. Accordingly, this Court directs that petitioner will have right of access to be child, but the Trial Court should not direct the police in this particular case to intervene and if there are difficulties in providing access to the child the Court should supervise the same either by appointing a Special Officer in whose presence or in the Chamber of the presiding Judge of the Trial Court the father petitioner should be directed to have access to the child. However, it is desired that the opposite party will also not unnecessarily refuse to co-operate with the father I petitioner to have access to the child and both the parties will desist from making mutual recrimination on the issue of visit of the father of the child. 8. However, it is desired that the opposite party will also not unnecessarily refuse to co-operate with the father I petitioner to have access to the child and both the parties will desist from making mutual recrimination on the issue of visit of the father of the child. 8. Accordingly, the revisional application fails and the impugned order is allowed to stand subject to above observations and for directions. There shall however be no order as to costs and the revisional application thus stands disposed of. Petition for revision rejected with observations.