ALOK SARKAR v. ANINDITA SARKAR — 1995 DIGILAW 267 (CAL)

( 1 ) THIS appeal is preferred against an order dated 13th July, 1995 passed by a learned single Judge of our Court in Contempt proceeding being Civil Rule No. 362/95. ( 2 ) IN the Matrimonial suit there was a proceeding for a child's custody under S. 26 of the Hindu Marriage Act and the learned Trial Judge directed the child to be handed over to the custody of the mother. The father was given the liberty to visit the child once every week. ( 3 ) AGAINST this Order No. 9 dated 26th September, 1994 passed by the learned Additional District Judge, 13th Court, Alipore (South) 24 Paraganas in Matrimonial Suit No. 15/94, the husband Aloke Sarkar, father of the child Ayan, preferred a revisional application before this Hon'ble Court being numbered as Civil Revision No. 1838a of 1994. It was disposed of by a learned Single Court of our Court on 23rd December, 1994 on the affirmation of the Trial Court's order and the father of the child was directed to hand over the custody of the child to the mother within one week from the date of the order at her residence being No. 4, Jawpur Road, P. 3, Dum Dum, Calcutta-700074, in default the mother of the child as opposite party was given liberty to take all appropriate steps under the law to recover the child and to have his custody. It was made clear by the learned Single Judge that the husband/petitioner would be at liberty to visit the child once a week at the residence of the wife after giving a prior intimation to the wife/o. P. The present appellant Aloke Sarkar, father of the child moved Hon'ble Supreme Court of India and by an order dated 11th July, 1995 the Division Bench of Hon'ble Supreme Court passed an order inter alia, to the following effect :"we see no reason to entertain the Special Leave petition and dismissed the same. The father is directed to hand over the child pursuant to the Court's order and if he does not do so, it would be a breach of the Court's order for which he can be hauled up for contempt. The father is directed to hand over the child pursuant to the Court's order and if he does not do so, it would be a breach of the Court's order for which he can be hauled up for contempt. " ( 4 ) ON 1st November, 1994 the learned Single Judge initiated a suo motu Rule of Contempt against Sri Aloke Sarkar for wilful and deliberate violation of an order passed by this Court on 28-10-94 which was in the nature of an inter locutory order, whereby the learned Single Judge directed inter alia that the child should be brought in Court by the father on 3rd November, 1994. On 15-3-95 the learned Single Judge issued a subsequent Rule of Contempt being Civil Rule No. 362 of 1995 upon a petition of Anindita Sarkar, mother of the child, calling upon the alleged contemnor-respondent Shri Aloke Sarkar son of Narayan Chandra Sarkar of T 79/k, Kaiser Street, P. S. Narkeldanga, Calcutta-700009 to show cause why he should not be committed to prison or otherwise penalised or dealt with for having violated the order of the Court. ( 5 ) IT is in this proceeding that on 13th July, 1995 Aloke Sarkar, present appellant appeared in Court along with the child Ayan. While the mother Anindita Sarkar was present, the learned single Judge of this Court directed the child to be handed over to the mother and the mother was directed to take custody of the child. The learned single Judge adjourned the contempt proceeding till 3-8-95. After the order was passed, before the Court rose for the day, the learned Advocate appearing for the mother submitted that his client was apprehending trouble in taking the child from the Court to a residence and she was also feeling insecure as the father and others were there in the corridor. Therefore, the Court might direct that at the time of taking the child to her residence, police might accompany her and render her help. ( 6 ) MR. Bikash Bhattacharyya, learned Advocate appearing for the alleged contemnor opposed such prayer and submitted that there was no such necessity for such police help and the apprehension was also not real. He suggested, that the Court might direct some learned Advocates of this Court to accompany the mother and the child to the residence of the mother. It was further submitted by Mr. He suggested, that the Court might direct some learned Advocates of this Court to accompany the mother and the child to the residence of the mother. It was further submitted by Mr. Bhattacharyya that the police should not be directed to accompany the child as that might create mental pressure upon the child which will not be in consonance with the mental health of the child. ( 7 ) THE learned Single Judge was of the opinion that the mother should be permitted to take the child back to her residence accompanied by police and with the help of police as also accompanied by some learned Advocates to be appointed by the Court. His Lordship requested Mrs. Shanti Das and Miss Shyamali Banerjee, learned Advocates to accompany the child and both of them have agreed to do so, though his lordship further directed that the mother would take back the child to her home accompanied by the said learned Advocates as also with the help of Police but at least a lady police should also accompany the child. For the aforesaid purpose the learned Single Judge directed the Officer-in-Charge of High Court to make appropriate arrangements including one for having lady police. ( 8 ) MR. Bikash Bhattacharjee, learned Advocate appearing for the appellant contended before us that this order directing police help to the mother of the child and further direction that at least a lady police should also accompany the child was an error of decision made by the learned Single Judge in a proceeding for contempt. ( 9 ) MR. Bikash Bhattacharjee, drew our attention to the previous background of the case that on 2nd November, 1994 when the child was forcibly put into a Taxi by the Police Officers in pursuance of the order of the learned Single Judge, the child violently resisted and shouted for help crying. The boy was forcibly put into a taxi while the boy was crying and trying to escape from the hands of the police. The father of the boy Sri Aloke Sarkar was reluctant to accompany the police contingent but his uncle Sri Ashoke Sarkar accompanied the Sub-Inspector of Police Mr. S. K. Ghosh so as to reach the boy at his mother's house at 4, Jawpur Road, Calcutta 74. The father of the boy Sri Aloke Sarkar was reluctant to accompany the police contingent but his uncle Sri Ashoke Sarkar accompanied the Sub-Inspector of Police Mr. S. K. Ghosh so as to reach the boy at his mother's house at 4, Jawpur Road, Calcutta 74. Due to non-availability of police vehicle, police arranged for a taxi to reach the boy at 4, Jawpur Road, Calcutta-74. ( 10 ) ON the way to the residence of the mother of the boy while the taxi reached near Shyambazar, the boy fainted in the taxi due to nervous break down and became sick. The uncle of the boy Sri Ashoke Sarkar who accompanied the police started weeping in the taxi for the sudden sickness of the nephew and without finding other alternative and considering the child's health Mr. S. K. Ghosh, Sub-Inspector of Police forthwith took the child into B. R. Singh Hospital. On examination made by the attending doctor of B. R. Singh Hospital the child was admitted at Children Ward, Bed No. Extra 3. The said Sub-Inspector of Police intimated the incident to the learned Single Judge and sent message to the mother of the child. We are apprised that after the child was admitted in B. R. Singh Hospital, the child had to remain there for about a week for his treatment. The child suffered a trauma and as and when we interrogated the child for two days, the child expressed before us his apprehension that he might be put to suffer assault by the Police if he was directed against his wishes to be taken to his mother. ( 11 ) THE child seems to be suffering from inhibition as regards the presence of police officers. It would be in the best interest of the child so as not to allow the child to be taken to his mother with any police officer in the act of effecting delivery of the child to the mother's custody. ( 11 ) THE child seems to be suffering from inhibition as regards the presence of police officers. It would be in the best interest of the child so as not to allow the child to be taken to his mother with any police officer in the act of effecting delivery of the child to the mother's custody. The child being away from the mother for more than three years and having no direct contact with her, might have been brainwashed by the father so as to express a negative opinion about the mother but the fact remains that the mother has to develop a sense of rapport and understanding with the child by creating an atmosphere of love and affection so that she can win over the child to herself. Mere physical delivery can be effected in terms of the order of Hon'ble Supreme Court but if the child behaves abnormally and turns a fugitive by running away from mother's custody we would also be answerable in this regard for not having looked to the ultimate welfare of the child. ( 12 ) IT is indeed true that we should not sit on judgement over the ultimate decision as made by the Hon'ble Supreme Court. Mr. Bikash Bhattacharjee, learned Advocate for the appellant by citing several decisions wanted to contend before us that even when Special Leave Petition is dismissed in liming it creates no judgement and the entire question must be well left open to be decided on merits before us. We do not agree with such a proposition, more so because we are on the limited question of the propriety of the decision that the learned Single Judge has taken while exercising the jurisdiction in contempt so as to direct handing over the child to the mother's custody through police help. We suggested to both the parties to find out ways and means so that the child may be put to any residential school and the child be deemed to be in mother's custody over there where both parents can visit the child but our suggestions did not work because of the negative attitude taken by the mother of the child in this regard. She only insisted a number of times before us that the order of the Hon'ble Supreme Court be carried out literally, missing the spirit behind the same. She only insisted a number of times before us that the order of the Hon'ble Supreme Court be carried out literally, missing the spirit behind the same. We are afraid because of the Supreme Court's decision and the limited scope of our interference while exercising the appellate jurisdiction over a particular order for police help, we cannot go into the merits as regards the order of custody. The Trial Court under S. 26 of the Hindu Marriage Act is vested with the appropriate jurisdiction to pass appropriate orders from time to time and can also take into consideration the changed or altered situation to the entire perspective keeping in view the welfare of the child. The child is not a chattel real or an inanimate object. The child is seven years old only. We are conscious of the judicial decisions on this point that the age of discretion as regards exercise of choice by a child is twelve but there are decisions contrary on this point too keeping in view the mental maturity of the child. Even he attains the age of twelve his preferences and predilections may be taken into consideration by the learned Trial Court while dealing with the custody matters from time to time. We would in the facts and circumstances of the present case direct the Special Officer Mrs. Santi Das to keep the child in her custody till such time the mother takes the child from her. We would only fervently wish and desire that the mother will put the child in a residential school, preferably in "dolna" where he has been continuing as a day scholar or at any institution of Ramkrishna Mission and to win over the child by acts of love and affection in such a manner as may be found suitable in this context. She may also take necessary instruction or pray for appropriate direction from the trial Court if there be any difficulty on any score whatsoever. Both parties would have the liberty to seek appropriate direction from the trial Court which is in seisin of the proceeding under S. 26 of the Hindu Marriage Act or for the matter of that of the Matrimonial Suit. ( 13 ) THE appeal accordingly stands disposed of. Both parties would have the liberty to seek appropriate direction from the trial Court which is in seisin of the proceeding under S. 26 of the Hindu Marriage Act or for the matter of that of the Matrimonial Suit. ( 13 ) THE appeal accordingly stands disposed of. ( 14 ) THE order passed by the learned Single Judge for police help to the wife i. e. the mother of the child is set aside though we are maintaining the other directions of the learned Single Judge as indicated hereinbefore. ( 15 ) WE make it clear that the cost of the residential school is to be borne by the father irrespective of the fact that the child would be deemed in mother's custody. We reiterate over again that both the parents would have appropriate access to the child. If there be any difficulty with regard to the child's living and mental conditions appropriate direction may be sought for from the trial Court. The Special Officer would accompany the mother to get the child admitted in any residential school being "dolna" or any other institution of Ramkrishna Mission as desired by the mother of the child in consonance with the desire of the father. Both the parties appearing in our chamber agreed to this suggestion. ( 16 ) LET a plain copy of this order duly countersigned by an Assistant Registrar (Court) be handed over to the learned Advocates for the parties. ( 17 ) ARUN KUMAR DUTTA, J. : I agree with the views expressed by my learned brother, Hon'ble Justice Mukul Gopal Mukherji, the conclusion having been arrived at by us upon due deliberation and anxious consideration of all relevant facts and circumstances of the matter. I would, however, like to keep on record that we had ascertained the wishes of the child Ayan, who is now a little more than 7 years' old, on 14th July, 1995 in Court, as recorded in our order of that date. We have again ascertained his wishes on 19th July, 1995 in our Chamber, on being produced by the Special Officer, Ms. Shanti Das, a lady Advocate of our Court. He had answered all our questions quite coherently and consistently, without the least fumbling or hesitation. We have again ascertained his wishes on 19th July, 1995 in our Chamber, on being produced by the Special Officer, Ms. Shanti Das, a lady Advocate of our Court. He had answered all our questions quite coherently and consistently, without the least fumbling or hesitation. The way he had answered our questions he seemed to have attained sufficient maturity of understanding and also seems to have attained the age of discretion. He had stated before us with more usual clarity and most emphatically that he is not willing to stay with his mother and that he is happy in the house of his father, being looked after by him (father) and by his (latter's) two parents, brother and sister. The child Ayan further stated that his cousin (Pisi's son) Sagar, who is of his age and reads in the same Class in the same School, Dolna is his play-mate and he gets his company as well. Querried by us in presence of the said Special Officer, he (Ayan) had stated before us that he would stay with his father rather than his mother, and that he would stay with his father rather than stay in the Hostel. And, when querried whether he would stay with his mother or in the Hostel he had promptly stated that he would stay in the Hostel rather than stay with his mother. He was not at all inclined to stay with his mother, as suggested by us. Such is his aversion to his mother that he preferred to remain in the custody of the Special Officer, Ms. Shanti Das, a lady Advocate of this Court, who is not a member of their family, since 13th July, 1995 till this day, for the last 7 days, rather than stay with his mother. As already stated above, he had clearly stated that he would stay in the Hostel rather than stay with his mother. It further appears from the materials on record that he (Ayan) had suffered a trauma once when he was sought to be forcibly taken to his mother's house with the help of Police. He was crying on the way in the Taxi and had eventually fainted for which he had to be removed to B. R. Singh Hospital at Calcutta, and had to be hospitalised there for about 7 days. He was crying on the way in the Taxi and had eventually fainted for which he had to be removed to B. R. Singh Hospital at Calcutta, and had to be hospitalised there for about 7 days. When he was sought to be forcibly taken away by the Police, along with his mother in Court on 13th July, 1995, after passing of the impugned order by the Court below, he had again suffered a trauma for which the services of an available Doctor had to be requisitioned in Court, who had prescribed medicines for him and had advised rest for him. He is the most prejudicially person affected by the impugned order, but he has no say in the matter, a child, as he is. These are matters which may have to be considered by the trial Court hereafter if the parties exercise it for modification of the order regarding his custody, if occasion arises therefor in view of change of circumstances, as already indicated above. ( 18 ) CONTEMPT is mainly a matter between the Court and the alleged Contemner. But it now seems to be a matter between the Court and the child Ayan, who is not a party to the proceedings, but is the object of the proceeding between his parents, as if he is an inanimate object having no soul and mind. He cannot present his cause because he is not a Sui-juris. In the tussle between his parents for his custody, he is the worst victim and the most prejudicially affected person. It is not known as yet whether his parents are craving for his custody out of love and affection for him, or whether they are fighting for his custody to put the other side to as much inconvenience or harassment, as they could, to satisfy their personal ego. In the matter of custody of a child the paramount consideration is the welfare and welfare and wellbeing of the child. I am afraid, the welfare and wellbeing of the child is sought to be sacrificed at the altar of law and Court in view of the conduct and attitude of his parents, as revealed during the hearing before us. In the matter of custody of a child the paramount consideration is the welfare and welfare and wellbeing of the child. I am afraid, the welfare and wellbeing of the child is sought to be sacrificed at the altar of law and Court in view of the conduct and attitude of his parents, as revealed during the hearing before us. ( 19 ) WE have expressed the view that the child should be put to the Hostel at Dolna or any other Institution of Ramkrishna Mission (as insisted by his mother), in the facts and circumstances indicated above. He is already deprived of love, care, affection and association of both his parents together for the last three years. He is staying with his father for the last three years. He did not have the company of his mother during this period. He now wants to stay with his father, for whatever reasons it might be. Presumably because, he has been in the custody and care of his father for the last three years, having his care and affection, as also the care, affection and company of his grand-parents, his uncle, and his 'pisi', and the company of his cousin Sagar,. who is about his age studying in the same class in the same school (Dolna), who is his play-mate, as stated by him before us. The question of his custody for the present having since been settled cannot be agitated before us. And, in view of the order of the Supreme Court dated 11th July, 1995, he (Ayan) cannot now be allowed to stay in the custody of his father, though wished and longed by him. He is thus to be separated from the association of his father, grand-parents, uncle, 'pisi' and Sagar, which he has been enjoying for the last three years. In terms of the aforesaid order of the Supreme Court he has to be made over to the custody of his mother. But he does not like to stay with his mother, as repeatedly and emphatically expressed by him before us. There being no other alternative, in the aforesaid circumstances, we have desired that he (Ayan) be put to a Hostel, in the circumstances already indicated above. As already noted, the child had also expressed before us that he would stay in the Hostel rather than stay with his mother. There being no other alternative, in the aforesaid circumstances, we have desired that he (Ayan) be put to a Hostel, in the circumstances already indicated above. As already noted, the child had also expressed before us that he would stay in the Hostel rather than stay with his mother. The mother insisted that he should be put to a Hostel of any Institution of Ramkrishna Mission rather than the Hostel at Dolna. In my considered view, Ayan should not be disturbed from Dolna where he is presently studying with his cousin Sagar. He is used to the association at Dolna in the company of his Teachers, School-mates and all concerned there. He is being separated from the association of his father, grand-parents, uncle, 'pisi' and Sagar at his father's residence. The only other association he is now used to is an association at the School Dolna, as indicated above. If he is withdrawn from Dolna and is deprived from his known association there all of a sudden, he would find himself in a world of strangers in new surroundings, which might be too difficult for him to reconcile. The effect thereof upon him is likely to be telling. Let his parents be not that unkind to him to make him face such a situation, which might be unbearable to him. Order accordingly.