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2001 DIGILAW 509 (CAL)

Indrajit Mukherjee v. Minati Mukherjee

2001-08-14

ALOK KUMAR BASU, ALTAMAS KABIR

body2001
JUDGMENT Kabir, J.: 1. This appeal is directed against the older dated 12th July, 2000, passed by the learned 7th Additional District Judge, Alipore, in Act VIII Case No. 265 of 1999 commenced on the respondent's application under Sections 7, 8 and 10 of the Guardians and Wards Act, 1890, for her appointment as guardian of the two minor children, Arijit Mukherjee and Kumari Sulaghna Mukherjee. By the said order, the learned Court below directed that the respondent-wife would be entitled to keep the minor son, Arijit Mukherjee, in her custody but that she would not be entitled to custody of her daughter, Kumari Sulaghna Mukherjee. It was further directed that both the respondent-wife and the appellant-husband would have visitation rights in respect of their son and daughter in the custody of either party. 2. This appeal has been preferred by the husband/opposite party against the said order passed by the learned 7th Additional District Judge, Alipore. 3. The facts of the case in brief are that the appellant herein was married to the respondent as per Hindu rites on 2nd June, 1985, and lived together as husband and wife for about ten years. A son named Arijit was born of the said wedlock on 30th December, 1986 and the daughter Sulaghna was born on 6th October, 1989. After their marriage, the appellant and the respondent resided in a flat at Dum Dum. The appellant-husband was an Assistant Public Prosecutor attached to the Magistrate's Court at Alipore. Subsequently, he was transferred to Krishnagar and was appointed as Assistant Public Prosecutor in the Court of the Chief Judicial Magistrate at Krishnagar, Nadia. He, thereafter, shifted his residence to Debagram where he had a permanent residence in joint family with his parents and brothers. It appears that the relationship between the appellant and the respondent soured to such an extent that in 1995, the respondent-wife left Debagram and took shelter in her father's house. She used to occasionally visit her husband's house at Debagram and in 1998, her son Arijit came back with her to her father's residence at Jorasanko in Calcutta. As far as the daughter was concerned, the appellant-husband got her admitted in Dakshineswar Balika Vidyalaya and kept her at the Adyapith Manikuntala Ashram. Thereafter, he got her admitted in the Government Residential Girls' School at Krishnagar. 4. As far as the daughter was concerned, the appellant-husband got her admitted in Dakshineswar Balika Vidyalaya and kept her at the Adyapith Manikuntala Ashram. Thereafter, he got her admitted in the Government Residential Girls' School at Krishnagar. 4. According to the appellant-husband, the respondent-wife was mentally unstable and was admitted on her own volition in the Pavlov Mental Hospital at Gobra in Calcutta on 23rd March, 1995, and that she was not capable of looking after their minor son. It was submitted that the appellant-husband had the best interest of their minor son at heart, and, accordingly, he wanted him to have a good education in a reputed school, preferably with hostel facilities where he would be free from the tensions generated between the appellant-husband and his wife. According to the appellant-husband attempts had been made by him for Arijit's admission in the Ramakrishna Mission School at Madhyamgram and also at Rishra. Attempts were also made by him to get his son admitted at Bholananda School at Barrackpore, but at every stage, the respondent-wife resisted such efforts and the child could not, therefore, be admitted in any of the aforesaid schools. On the other hand, the minor son was admitted by the respondent-wife to the Town School at 33, Shyampukur Street, Calcutta-700 004, which did not enjoy the same reputation as the Ramakrishna Mission Schools. According to the appellant-husband, the child's studies had suffered and the marks obtained by him in his half yearly and annual examinations were extremely poor. 5. Mr. Anjan Banerjee, learned Advocate appearing for the appellant-husband, submitted that in cases of this nature it is the interest and welfare of the minor which should be the paramount consideration for grant of custody and that since such consideration was uppermost in the mind of the appellant-husband, the order of the learned Court below should be modified and the appellant-husband should be given a chance to get Arijit admitted into a reputed school for his own future. 6. Appearing on behalf of the respondent-wife, Mr. Jiban Ratan Chatterjee, learned advocate, submitted that the minor son was now in Class-IX and would be sitting: for the Madhyamik Examination next year. At this juncture, it would not be in the interest of the minor to take him out of his present school and to have been admitted in some other school. Jiban Ratan Chatterjee, learned advocate, submitted that the minor son was now in Class-IX and would be sitting: for the Madhyamik Examination next year. At this juncture, it would not be in the interest of the minor to take him out of his present school and to have been admitted in some other school. He also submitted that the respondent-wife was herself a Post-Graduate in Bengali and was capable of not only teaching her minor son but also devoting much more lime towards him than the appellant- husband. 7. Having regard to the aforesaid facts, we decided to obtain the views of the minor son and have spoken to him separately. He has himself expressed his aversion to being shifted out from his present school as that would disturb his preparation not only for this year but also for the Madhyamik Examination. He also expressed his unwillingness to go to his father or to prosecute his studies in a boarding school as suggested by the appellant-husband. 8. Having regard to the sentiments expressed by the minor Arijit and the surrounding circumstances, we are also agreed that at this stage of his studies Arijit should not be uprooted from his present school, where he has been studying for the last few years, and be placed in a totally new situation. As it is, the child is undergoing a traumatic experience on account of the rift between his parents. In our view, such a step will not be in the interest of the minor and the learned Court below was justified in directing that he should remain in the custody of his mother. We are not, therefore, inclined to interfere with the order under appeal and the appeal is, accordingly, dismissed. There will, however, be no order as to costs. Basu, J.: I agree.