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2007 DIGILAW 507 (CAL)

Soma, Mazumdar v. Sanjay Mazumdar

2007-07-09

JYOTIRMAY BHATTACHARYA

body2007
Judgment :- (1.) THIS application under Article 227 of the Constitution of India is directed against an order being Order No. 43 dated 2nd March, 2007 passed by the learned Additional District Judge, 7th Court at Alipore in Misc. Case No. 32 of 2005 at the instance of the plaintiff/petitioner. (2.) THE plaintiff/petitioner filed a suit for divorce against the defendant/opposite party on the ground of cruelty. In connection with the said suit, the plaintiff/petitioner filed an application under section 26 of the Hindu marriage Act for an order for interim custody of the female child who is aged about four years. (3.) ADMITTEDLY, twin babies were born on 19th May, 2003. It is also an admitted fact that the male baby is in the custody of the mother and the female baby is in the custody of the father. (4.) BY the impugned order, the learned Trial Judge rejected the petitioners application for interim custody of the female child by holding that since no specific allegation has been made against the father who is the natural guardian for not looking after the welfare of the child and further since the mother who is living at her fathers house having no source of income to maintain the twin baby, the mother cannot be deemed to be a suitable custody for the said female child. (5.) MR. Chatterjee, learned Senior Advocate, appearing for the petitioner, submits that when admittedly the age of the female child is less than five years, it is expected that the female child should be kept in the custody of the mother as the child of such age needs affection of her mother for which there is no adequate substitute. In support of his submission, Mr. Chatterjee has relied upon the following decisions of the Honble Supreme Court: (i) Manju Tewari vs. Rajesh Tewari, reported in AIR 1990 SC 1156 and (ii) Puspa Sing vs. Indrajit Sing, reported in 1990 (Suppl) SCC page 53. (6.) MR. Chatterjee, thus, invites this Court to interfere with the order impugned. (7.) THIS Court finds that in both these decisions, the Honble Supreme court held that the paramount interest of the child who is lower than five years in age can be achieved by giving the child in the custody of the mother, inasmuch as child of such age undoubtedly needs affection of her mother as there is no adequate substitute. (7.) THIS Court finds that in both these decisions, the Honble Supreme court held that the paramount interest of the child who is lower than five years in age can be achieved by giving the child in the custody of the mother, inasmuch as child of such age undoubtedly needs affection of her mother as there is no adequate substitute. (8.) MR. Das, learned Advocate, appearing for the opposite party, however, opposes such prayer by submitting that since there is no allegation the father about his negligence to look after the child properly and/or to bring her up with proper care, the present custody of the child with the father should not be disturbed. (9.) HAVING heard the submissions of the learned Advocates for the parties and after considering the decisions cited by Mr. Chatterjee, this Court is of the view that the paramount interest of upbringing the child will be achieved if the child who is less than five years is given in the custody of the mother. (10.) THAT apart, when admittedly the male child of the twin babies is staying with the mother and there is no allegation against the mother regarding her negligence and/or incapability to look after the welfare of the said child properly, this Court thinks that both the children should be brought up together, so that one child is not deprived of the company of the other child, inasmuch as our common experience says that the upbringing of the twin babies can be achieved if they stay together and is brought up in equal standard under the love and affection of the mother because of their similarities in their life style in every sphere. (11.) THAT apart, want of sufficient fund in the hands of the mother cannot be a reason for refusal for her prayer for custody, particularly when such fund can be arranged from the father. (12.) THE opposite party being a service holder, to unable is devote much time for looking after the said child who is left under the custody of the opposite partys sister during the period of his absence. (13.) AS such, this Court holds that mothers custody is much more preferable and desirable than the custody of the fathers sister. (14.) UNDER such circumstances, the order impugned passed by the learned trial Judge is set aside and the father of the child, viz. (13.) AS such, this Court holds that mothers custody is much more preferable and desirable than the custody of the fathers sister. (14.) UNDER such circumstances, the order impugned passed by the learned trial Judge is set aside and the father of the child, viz. , the opposite party herein, is directed to hand over the child to the mother/petitioner before the learned Trial Judge on 10th August, 2007 at 2.00 p.m. (15.) LIBERTY is given to the father/opposite party to visit the child during every weekend, so long as this arrangement will continue. The wife/petitioner is also directed to co-operate with husband in this regard. (16.) URGENT xerox certified copy of this order, if applied for, be supplied to the parties within four days from the date of its application. Revisional application allowed.