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2008 DIGILAW 954 (CAL)

Chandan Nandy v. Chandra Nandy

2008-09-24

BISWANATH SOMADDER

body2008
JUDGMENT 1. This application is primarily directed against an order, being Order No.4 dated 19th June, 2008 passed by the learned District Judge at Alipore, District - South 24-Parganas in Act VIII Case No. 87 of 2008. 2. The petitioner in the instant application is the adoptive father of a nine-year-old girl child, named Devdatta. The opposite party is the adoptive mother. 3. The impugned order passed by the learned Court below emanates from an application filed by the petitioner father on 17th June, 2008 inter alia praying for access. By the order impugned, the learned Court below granted the adoptive father visitation right to see Devdatta at her adoptive mother's place on every alternate day in-between 8-00 a.m. to 8-00 p.m., barring the school hours of the minor Devdatta, for a period of two hours till further order. It transpires from a plain reading of the impugned order that so far as access given to the father to visit Devdatta is concerned, the same was agreed upon by the learned Advocates representing both the parties before the learned Court below. It, however, appears that a dispute arose as to the place of visitation. Taking into consideration of the submissions made by the learned Advocates on behalf of the parties and keeping in mind the interest of the child, the learned Court below gave such direction as indicated above. 4. Against this order of the learned Court below granting visitation right to the adoptive father to see the child, Devdatta, at her adoptive mother's place, the petitioner-father approached this Court by filing the instant application invoking its jurisdiction under Article 227 of the Constitution of India. 5. Before dealing with the merits and contentions of the respective parties so far as it relates to the order impugned, it needs to be placed on record that at the very outset this Court tried its best to resolve the issues and differences by calling the parties to appear in-person in chamber and also by giving certain directions in a earlier order dated 10th September, 2008 in order to enable the child, Devdatta, to enjoy her birthday in the presence of her family members, which fell on 14th September, 2008. It further appears that the parties to the instant proceeding, although well-educated adults, have not been able to resolve their differences even for the sake of their adopted child, Devdatta. It further appears that the parties to the instant proceeding, although well-educated adults, have not been able to resolve their differences even for the sake of their adopted child, Devdatta. It is in this unfortunate factual backdrop that this Court is constrained to take up and dispose of the instant application, strictly on its own merit. 3. As stated hereinbefore, the order impugned emanates from an application filed before the learned Court below by the petitioner-father sometime in June, 2008, praying for access. Before the learned Court below the dispute with regard to the place of visitation was resolved by the learned Judge by passing such direction, as has been stated above. 7. Learned Counsel appearing on behalf of the petitioner, after placing the facts of the instant case, relies on several judgements of the Hon'ble Supreme Court and a judgement of a learned Single Bench of Delhi High Court and submits that the principles of law applicable in the case of custody of a child shall also govern in the case of visitation or access. 8. He further submits that whenever a question arises before a Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the respective legal rights of the parties, but on the sole and predominant criterion of what would best serve the interest and welfare of the child. He submits that in the facts and circumstances of the instant case the best interest and welfare of the child, Devdatta, would be served not only by granting visitation right to his client and the paternal grandparents, but also custody. He relies on the judgement of the Hon'ble Supreme Court in the case of Elizabeth Dinshaw vs. Arvand M. Dinshaw & Anr., reported in AIR 1987 SC 3 . Relying on the decision rendered by the Hon'ble Supreme Court in the case of Dhanwanti Joshi vs. Madhav Unde, reported in 1998(1) SCC 112 , he also submits that an order passed by a foreign Court could be a factor that may be taken into consideration by an Indian Court, while deciding an issue relating to child custody. Relying on the decision rendered by the Hon'ble Supreme Court in the case of Dhanwanti Joshi vs. Madhav Unde, reported in 1998(1) SCC 112 , he also submits that an order passed by a foreign Court could be a factor that may be taken into consideration by an Indian Court, while deciding an issue relating to child custody. He also relies on Kumar V. Jahgirdar vs. Chethana Ramatheertha's case reported in 2004(2) SCC 688 and submits that the Court ought not to decide the issue relating to custody of the child solely on one consideration that between the two parents the mother always claims superior custody right of the child. 9. He finally relies on a judgment of a learned Single Bench of the Delhi High Court in CRP No. 276 of 2003 (Paramjit Singh Lamba vs. Prabjot Kaur) and submits that fixation of the time and place of visitation, as granted by the learned Court below, would amount to a situation where the mother, who already has custody of the child, can easily brainwash her child so as to make her develop a dislike for the father as well as the paternal grand parents. He submits that in the facts and circumstances of the instant case, the order impugned cannot be sustained in law and is liable to be set aside with consequential directions to be given by this Court. 10. Responding to the submissions made by the learned Counsel for the petitioner, the learned Counsel appearing on behalf of the opposite party submits that the scope of the present application under Article 227 of the Constitution is limited inasmuch as the application filed before the learned Court below by the petitioner, based on which the impugned order was passed, was inter alia for an order for execution of a judgement of a U.S. Court granting custody of Devdatta to the petitioner-father and for an interim order directing the opposite party (mother) to allow the adoptive father and parental grand parents of Devdatta full, complete and uninterrupted access to and interaction with the child, including the right to take the child out and take her home (paternal grand-parents') during weekends and stay there overnight, specifically for the duration of the current stay of the petitioner-father in Kolkata till 7th July, 2008. He submits that the order impugned was based on the above prayers made by the petitioner-father in his application filed before the learned Court below and the scope of the interim order against which he has approached this Court, has, by efflux of time, become infructuous. He submits that the order impugned was passed by the learned Court below on 19th June, 2008, taking into consideration the fact that the petitioner-father would be in Kolkata till 7th July, 2008. He, therefore, submits that the effect and purport of the impugned order does not subsist any more and thus there cannot be any cause for interference of this Court in respect of the order impugned, in exercise of its jurisdiction under Article 227 of the Constitution of India. 11. Insofar as the merits of the case is concerned, in reply to the submissions made by the learned Counsel for the petitioner, he dwells upon the facts of the case at length and relies on several judgements of the Hon'ble Supreme Court. Relying on Mausami Moitra Ganguli vs. Jayant Ganguli, reported in 2008(7) SCC 673 , he submits that the question of welfare of a minor child has to be considered in the background of the relevant facts and circumstances. He submits that the Supreme Court has specifically held in paragraph-20 of this judgement that each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as factual aspects of the case are concerned. 12. He also relies on Mamta alias Anju vs. Ashok Jagannath Bharuka, reported in 2005(12) SCC 452 , and submits that while deciding the issue as to whether custody should be given to the mother or the father or partially to one and partially to the other, the Court must take into account the wishes of the child concerned, and assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. He submits that the Hon'ble Supreme Court held that all this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent. 13. He further relies on a recent decision of the Hon'ble Supreme Court in Civil Appeal No. 4960 of 2008 in the case of Nil Ratan Kundu & Anr. vs. Abhijit Kundu (unreported). 13. He further relies on a recent decision of the Hon'ble Supreme Court in Civil Appeal No. 4960 of 2008 in the case of Nil Ratan Kundu & Anr. vs. Abhijit Kundu (unreported). Specifically relying in paragraphs 74, 79, 80 and 81 of the said judgement, he submits that in exercising discretionary jurisdiction and in deciding delicate issues of custody of a child, wishes of the minor should be ascertained by the Court before deciding as to whom custody should be given. He, thus, submits that in the facts and circumstances of the instant case even on merit there is no scope for interference by this Court in respect of the order impugned in exercise of this Court's jurisdiction under Article 227 of the Constitution of India. 14. After considering the submissions made by the learned Advocates appearing on behalf of the parties and taking into consideration all relevant facts of the instant case as well as the order impugned and the various judgements cited before me, I am of the opinion that although the principles of law governing cases relating to custody of a child broadly and substantially governs the aspect of visitation or access also, there is a slight difference between the two. It is well-settled that paramount welfare of the child is the primary concern that should govern cases of custody as well as cases relating to visitation or access. However, in case of the latter, the fallout or after-effect or the impact created upon a child's sensitivity, consequent to a brief temporary visit of a parent is also required to be considered and the effect of such impact ought to be weighed carefully and not lost sight of by a Court. Essentially, what is required to be considered by a Court in such matters is whether the paramount welfare of the child would stand compromised in any manner if a grant of visitation or access has an adverse impact upon a child. In my opinion, in such matters a Court may, inter alia, take into consideration such factors which include the child's immediate environment and surroundings, the emotional security provided by those nearby, happiness and contentment that a child gets from such persons, environment and surroundings, all of which would be conducive for the child to thrive and grow and become a good human being. It may not be out of context to refer to a recent decision of this Court in C.O. No. 3361 of 2007 with C.A.N. 1005 of 2008 in the case of Sajjan Sharma vs. Dindayal Sharma (unreported). In the said case, this Court, while considering the sustain ability of an order passed by a learned Court below, in an application for interim custody of twin children claimed by their father and natural guardian, went on to observe as follows: "After going through the respective contentions of the parties and taking into consideration the various judgements referred to and relied upon, I am of the view that in matters such as this, there cannot be any straitjacket formula that can be made applicable, save and except, paramount welfare of the child. Whether a criminal case against a natural guardian is pending or whether custody of a child is with the natural guardian or with someone else, in my view, is of little or no consequence. Each such scenario is to be considered on the touchstone of the child's paramount welfare. It is not as if a father or a mother, being a natural guardian, can claim custody of a child, as a matter of course or as a rule of thumb. If the Court is called upon to decide whether such natural guardian can be given custody of a child, the sole consideration to be weighed by it ought to be what could be the paramount welfare of the child, and nothing else. However, in order to do so, the Court takes into consideration several factors. In my opinion, such factors include the child's immediate environment and surroundings, the emotional security provided by those nearby, happiness and contentment that a child gets from such persons, environment and surroundings, all of which would be conducive for the child to thrive and grow and become a good human being. Whether this is achieved in a foster home or in the house of a natural guardian, in my view, bears no consequence." 15. Whether this is achieved in a foster home or in the house of a natural guardian, in my view, bears no consequence." 15. The Hon'ble Supreme Court, in the recent decision which was cited by the learned Counsel appearing on behalf of the respondent in Mousami Maitra Ganguli's Case (referred supra), while deciding an issue relating to custody of a minor child has, inter alia, observed that the question of welfare of a minor child has to be considered in the background of the relevant facts and circumstances and each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. In my view, the above observation of the Hon'ble Supreme Court makes it clear that in matters such as this, each case has to be decided on its own unique set of facts. 16. Having regard to the above and taking into consideration the specific facts and circumstances of the instant case, I am of the view that although a right of visitation to the adoptive father and parental grandparents of Devdatta ought not to be denied, the same is required to be monitored and regulated in such a manner so as to ensure that such visitation and/or access to the child, Devdatta, does not create any adverse impact upon her or leave her traumatized in any manner, due to the behaviour of either parents and/or her grand parents during the course of such visitation and this regulation and monitoring has to be .made carefully, solely based on the paramount welfare of Devdatta and nothing else. 17. I therefore propose to pass the following order: 1. The petitioner, so long as he is in this country, shall be permitted to meet and interact with his daughter, Devdatta, on every alternate' day between 7.00 p.m. and 9.00 p.m., except Thursdays and also save and except those days when she is unwell. 2. Such meetings shall be held at the residence of the petitioner and the opposite party, alternatively. However, the presence of the opposite party, i.e. the mother of Devdatta is imperative during such meetings. The meetings shall be held in terms of this order, only in the presence of a Special Officer. 3. 2. Such meetings shall be held at the residence of the petitioner and the opposite party, alternatively. However, the presence of the opposite party, i.e. the mother of Devdatta is imperative during such meetings. The meetings shall be held in terms of this order, only in the presence of a Special Officer. 3. For the above purpose, I appoint Miss Sujata Mukherjee, a learned Advocate of this Court as a Special Officer. She is directed to ensure compliance of the directions given by this Court by both the parties and to ensure that the parents and grandparents of Devdatta behave responsibly and maturely, whenever they are together in the presence of Devdatta. 4. Adequate care should be taken by the Special Officer when such meeting takes place to ensure that the after-effect of such meeting does not create any adverse effect or impact on the mind of the child, Devdatta. 5. The Special Officer shall be provided transportation and shall be entitled to a remuneration of 30 G.Ms. per visit, which shall be shared equally by the parties. 18. The visitation and/or access granted in terms of this order shall be subject to the overall supervision of Mr. Saumen Sen, Advocate, Bar Library Club, High Court, who shall have the final say and authority to regulate and monitor the visitation and/or access, as he may deem fit and proper. For the said purpose, Mr. Soumen Sen, if he so chooses, may be personally present at any time during the period of visitation in terms of this order. 19. The matter will appear as a part-heard matter on 14th November, 2008. 20. Xerox plain copy of the order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates of the parties as well the learned Special Officer. B. Somadder, J.: Directions given.