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2007 DIGILAW 854 (CAL)

Nilratan Kundu v. Abhijit Kundu

2007-12-07

KALIDAS MUKHERJEE, PRANAB KUMAR CHATTOPADHYAY

body2007
JUDGMENT:- (1). AND out of the said wedlock Antariksh was born on 18.11.99, Mithu Kundu who had been suffering from hyper-tension and other ailments died following severe pain on her chest. She died before she could be taken to a local government Hospital. The parents-in-law of the present Oppsite party being terribly shocked due to sudden demise of their daughter lodged a complaint with the local police station alleging torture and murder of their daughter by their son-in-law. During the pendency of the said case, the opposite party herein was taken into custody and under that circumstance, the parents-in-law of opposite party herein-expressed their desire to meet their grand son antariksh and keep him with them for some days. On such request made by the maternal grand parents of the child, the mother of the opposite party herein sent Antariksh to his maternal grand parents through a common relative named Niranjan Kundu. After being released on bail, the opposite party herein wanted to take back his son from his in-laws, but the present appellants i.e. the in-laws of the opposite party herein refused to hand over Antariksh to the opposite party. Under such circumstances, the opposite party herein filed a case under Sections 7 and 10 of the Guardians and Wards Act (Act VIII of 1890) praying for his appointment as the guardian of his son Antariksh and for permanent custody of his son. (2). THE present appellants i.e. the maternal grand parents of the child contested the case. It was contended by the appellants before the learned court below that Antariksh was handed over to them in sick condition from the house of the opposite party herein. (3). THE learned Court below considering the respective contentions of the parties allowed the petition under Sections 7 and 10 of the Guardian and wards Act (Act VIII 1890) holding that the maternal grand parents had not obtained custody of their grand son by any unlawful means. It has also been observed by the learned Judge of the Court below that the petitioner/father wanted to take back his son from the custody of his parents in law which was refused by them. It has also been observed by the learned Judge of the Court below that the petitioner/father wanted to take back his son from the custody of his parents in law which was refused by them. The learned Court below further held that the maternal grand parents of the child did not apply before any Court for their appointment as the legal guardians of Antariksh and it was their legal duty to return the child to his father immediately after Antarikshs father wanted the custody of the child. It was further held that keeping Antariksh in their custody ignoring the claim of Antarikshs father was not legal. It was held that the opposite parties wanted to wipe out the existence and identity of father from the mind of the petitioners son and if it is so, then it may be disastrous for the future of the petitioners son. (4). THE learned Court below further held that under the proviso of Section 6 of the Hindu Minority and Guardianship Act, 1956 nothing has been alleged against the father of the child, and, therefore, the petitioner/father had every right under the law to act as the guardian of his minor son and to keep him in his custody. The learned Court below however, held that legal right was not always the ultimate criteria to choose the custodian of a minor and having regard to the facts and circumstances of the case, the learned Court below held that the present and future of Antariksh would be better secured in the custody of his father and that the father is the best guardian of the child in absence of his mother. The learned Court below further held that the petitioner/ father being the natural guardian of his minor son and having not been disqualified for any reason under the Act, it was not required to declare him as the legal guardian of his son, especially when nobody else has claimed to be the legal guardian of the minor child. Learned Court below held that the maternal grand father will retire from service on 2010 and on the contrary, the petitioner is an Engineer/technician in the Indian Airlines having sufficient financial means to bear the expenses for the education of the son. It was further held that the father was in a better condition on all aspects to take all cares and. It was further held that the father was in a better condition on all aspects to take all cares and. for the proper upbringing of his minor son than his parents in-law. However, having regard to the fact that the maternal grand parents took care of the child for the last two years and since the child developed emotional attachment with his grand parents, the learned Court below held that there would be periodical meeting between the maternal grand parents and the child. The learned Court below thus allowed the case under Sections 7 and 10 of the Act (Act VIII of 1890) directing the opposite parties to return their grand son Antariksh to the custody of the petitioner within one month and that the opposite parties after three months from the date of return of Antariksh may take Antariksh to their house from the house of the petitioner in the afternoon of every 4th Saturday of each English calendar month on condition to return Antariksh to the house of the petitioner in the afternoon of the next day and that the opposite parties may also take and keep Antariksh in their house for seven days during summer vacation or puja vacation of the school and date of such visit of Antariksh to the house of the opposite parties would be mutually decided by the parties. The learned Court below further directed that in case of conviction of the petitioner, the opposite parties would be at liberty to pray before the Court for further appropriate order. (5). MR. Bikash Ranjan Bhattacharya, learned Senior Counsel appearing on behalf of the appellant/grand parents submits that the guardianship of the child is not in dispute and the welfare of the child is the paramount consideration to decide the question of custody. Mr. Bhattacharya further submits that the father did not pay a single farthing for the education of the child and did not take care for the well being of the son. It is contended that the point for consideration in this appeal is whether the existing custody of the child with the grand parents is for the welfare of the child or not. It is contended that the point for consideration in this appeal is whether the existing custody of the child with the grand parents is for the welfare of the child or not. It is submitted that if the child is placed in the custody of his father that would affect the childs mental equilibrium and the learned Court below did not observe that the existing custody with the grand parents was against the welfare of the child. It is contended that while deciding the question of welfare of the child, the learned Court below ought to have examined the child. (6). MR. Bhattacharya further submits that the learned Court below also held that the opposite parties are taking all cares for the well being of the child. It is the contention of Mr. Bhattacharya that the child should remain in the custody of the grand parents i.e. the present appellants for better up-bringing of the child. It is contended that the income certificate of the father was not filed before the learned Court below and for growing the better relationship and understanding with the father, an order should be passed in the appeal for the visit of the child to his fathers house every Saturday. Mr. Bhattacharya has referred to and relied on a decision reported to 2000 (9)SCC 745 , Sumedha Nagpal v. State of Delhi and Ors. (7). MR. Subrata Banerjee learned Counsel appearing on behalf of the respondent (father of the child) submits that on the next date of the death of the mother, the respondent was arrested and the mother of the respondent was absconding as admitted by the grand parent Nil Ratan Kundu in his evidence. Mr. Banerjee contends that the name of the father was not mentioned in the admission register of the child in the school and this shows the ill will nurtured by the grand parents against the respondent. It is contended that the immunization and health card etc. were handed over by the respondent to the appellants after getting bail from the criminal case lodged by the appellants. Mr. Banerjee has produced some photographs showing that as per the interim order passed in this appeal, the child visits his fathers house every Saturday and lives there happily with the father and paternal grand mother. Mr. were handed over by the respondent to the appellants after getting bail from the criminal case lodged by the appellants. Mr. Banerjee has produced some photographs showing that as per the interim order passed in this appeal, the child visits his fathers house every Saturday and lives there happily with the father and paternal grand mother. Mr. Banerjee submits that the maternal grand parents did not apply to be the guardian of the child. Mr. Banerjee verbally undertakes on behalf of his client in the course of his argument that if the custody is given with the father, in that case the father will not seek change of school of the child since the child has been admitted in St. Xaviers Collegiate School. Mr. Banerjee further submits that as the respondent resides at a distant place, father will arrange for his sons attendance in school by providing his own car. Mr. Banerjee contends that there are several tenants where the appellants reside and there is one common bathroom and the standard of living there is very low. Mr. Banerjee submits that it is the fathers interest to grow up the child in better condition and in this connection Mr. Banerjee has relied on and referred to a decision reported in 1997 (1) Cal. LJ 466, Pravat kr. Saha v. Dilip Pramanik. (8). AFTER hearing arguments advanced by the learned Counsels of both sides, we have heard the child in chamber. (9). ADMITTEDLY, the father is the natural guardian of the child and under the proviso of Section 6 of the Hindu Minority Act and Guardianship Act, 1956, the disqualifications provided thereunder are not attracted in the present case. It is also an admitted fact that the maternal grand parents did not apply for their appointment as guardian of the child. From the facts of the case it is also clear that the mother of the child died for which the grand parents lodged a criminal case against the respondent herein. Immediately, after the lodging of the said case, the respondent herein was arrested and his mother absconded as stated by maternal grand parent Nil Ratan Kundu in his evidence. Under such circumstances, on the request made by the present appellants, the child was handed over to the present appellants and the respondent on being released, demanded the custody of the child which the appellants herein denied. Under such circumstances, on the request made by the present appellants, the child was handed over to the present appellants and the respondent on being released, demanded the custody of the child which the appellants herein denied. Thereafter, the respondent herein i. e. the father of the child filed the case under Sections 7 and 10 of the Guardians and Wards act (Act VIM of 1890) and the learned Court below after considering the materials-on-record and hearing both sides passed the order under appeal. (10). IT is the settled principle of law that while deciding the question of custody of the child, the paramount consideration is the welfare of the child. In order to decide the question of welfare of the child, the surrounding facts and circumstances are to be taken into consideration. The learned Court below while considering the question of welfare of the child, took into consideration the factual aspects of the case as urged by the learned Counsels of respective parties. But, however, the learned Court below did not examine the child because of his tender age and it was not urged by either party. (11). DURING the pendency of the appeal, an interim order was passed directing the appellants herein to retain the custody of the child with the further direction that the child will visit his fathers house every Saturday and return to the house of maternal grand parents on the following Sunday. The photographs as shown by Mr. Banerjee also show that the child during his periodical visit lives in the house of his father happily. From the photographs there is no indication of any lack of love or affection from the side of the father or paternal grand mother. The photographs clearly show that the father has been taking proper care and extending natural love and affection to the child. Needless to mention that the child was initially in the custody of the parents and after the death of the mother he has been residing with his maternal grand parents. This growing relationship with the father pursuant to the interim order is a circumstance which speaks in favour of giving the custody of the child with the father. (12). THE child has been admitted in a renowned school in Kolkata. As to the objection regarding the distance of school from the house of the respondent, Mr. This growing relationship with the father pursuant to the interim order is a circumstance which speaks in favour of giving the custody of the child with the father. (12). THE child has been admitted in a renowned school in Kolkata. As to the objection regarding the distance of school from the house of the respondent, Mr. Banerjee the learned Counsel appearing on behalf of the respondent has verbally given the undertaking on behalf of his client in course of advancing his argument that the respondent will not seek change of school in case the child is given to the custody of the father and the respondent, who owns a car, will send his son to the school by his own car. (13). WE have gone through the evidence adduced by both sides and also heard the child in order to decide the question of the welfare of the said child. During our conversation with the child we have observed with great anxiety that the child has been tutored to make him hostile towards his father. In this connection it is worth mentioning here that the learned Court below also held that the opposite parties wanted to wipe out the existence and identity of father from the mind of the petitioners son and if it is so, then it may be disastrous for the future of the petitioners son. (14). WE are of the view that the child should not be deprived of the love and affection of the father which is required for the proper development of the mental health of the child. Similarly, he should also get the love and affection of the maternal grand parents. The child should grow up with the love and affection of the father as well as the maternal grand parents. We are satisfied after having conversation with the child and viewing the photographs that the said child during his periodical visit to his fathers house spent the time merrily. Having regard to the totality of the circumstances, we are of the considered view that it is the interest and responsibility of the father for the proper up-bringing of the son and having regard to the question of the welfare of the child, we find that the learned Court below was justified in deciding the question of custody of the child in favour of the father. The learned Court below also rightly held that if the petitioner is convicted and sentenced, the opposite parties will be at liberty to pray before the Court for modification of the order. We also approve the directions of the learned judge of the Court below as regards the visit of the child to the house of the maternal grand parents on every 4th Saturday of each English calendar month and return on the next Sunday and for seven days during summer or puja vacation of the school. We are, however, unable to agree with the finding of the learned Court below regarding the commencement of such visit after three months from the change of custody. We, therefore, direct that such visit will commence from the next 4th Saturday of this month after the change of custody having regard to the love and affection received by the child during the last two years. The child will remain in the custody of the father and will visit the house of his maternal grand parents on every 4th Saturday of the month as directed by the learned Court below. The appellants are directed to hand over the child Antariksh to the custody of the father on 8th December, 2007 at 6.00 p.m. positively. The order under appeal is, therefore, modified to the extent as stated above. (15). BOTH the appeal and the application are thus disposed of with no order as to costs. Interim order passed earlier stands vacated.