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2010 DIGILAW 1065 (CAL)

Raghunath Dutta v. STATE OF WEST BENGAL

2010-08-26

AMIT TALUKDAR, MRINAL KANTI CHAUDHURI

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JUDGMENT 1. SEEKING for a Writ in the nature of a habeas corpus the petitioner has moved this Application with the following prayer: "(a) A Writ in the nature of Habeas Corpus issue Commanding the respondent No. 4 and their agents to return the daughter of the petitioner forthwith. (b) A Writ in the nature of habeas corpus, be issued against the respondent No. 1 to 4 for production of the minor daughter of the petitioner in this Hon'ble Court and for her being set liberty forthwith." 2. THE petitioner has laid claim on his daughter who is residing with Respondent No. 4 since the death of her mother due to unnatural circumstances. On the basis of filing of this Application we directed issuance of Notice and upon appearance of the parties gave necessary further directions for exchange of Affidavits. However, no Affidavit has been exchanged, as such, we have extensively heard the learned Counsel in support of the Application, the Respondent No.4 and the Public Prosecutor for the State. 3. TO have a better grasp over the entire situation we also interacted with the little child in open Court in presence of her grandmother and the Petitioner himself. At the outset we found that she was very much reluctant even see the face of the Petitioner let alone having any discourse. Even on our request the little child did not budge an inch and on the contrary she hid her face in the lap of her grandmother and started waiting loudly. 4. NOW, we will consider the legal position as has been sought to be canvassed at the Bar in support of the Application. No doubt true that the Petitioner being the father is the natural guardian. Fact remains that the mother of the little child died under unnatural circumstances and since then this little child, as pointed out, has been residing with her grandparents since the time of the mother's death. Logistics of Law if applied along with cold logic thereof, we are afraid, would result in disastrous results. The little child was not only reluctant, as we have seen, to have any interface with the Petitioner but from her body-language we could perceive that she nurtured immense hatred and scorn for the Petitioner. Logistics of Law if applied along with cold logic thereof, we are afraid, would result in disastrous results. The little child was not only reluctant, as we have seen, to have any interface with the Petitioner but from her body-language we could perceive that she nurtured immense hatred and scorn for the Petitioner. In such situation it would be absolutely unjust unkind and impractical for the Court applying the cold logic of Law to ask the little child to return to the house of the Petitioner where definitely the trauma of the death of her deceased mother would still haunt her innocent mind. 5. THAT apart we find this Writ has been taken out by the petitioner practically for the purpose of circumventing the logical conclusion arrived at by the learned Judicial Magistrate, Third Court, Barrackpore in connection with Case No.C/229/10 wherein the learned Magistrate, after considering the entire situation and after receiving the Police Report, dismissed the proceeding initiated by the petitioner filed under Section 341 of the Indian Penal Code as also under Section 97 of the Code of Criminal Procedure. 6. WE would share the reasons and the finding arrived at by the learned Magistrate. Although we cannot sit in Appeal or Appeal Revision against the said finding, we can say simply it has been just justice. Now, coming back to the main point for consideration we feel that the custody of the little child which has been the primordial issue in this Application is required to be decided on the anvil of the prayer made by the Petitioner on the ground that the little child is not being educated properly and the atmosphere in her grandparents house is not congenial for her innocent mind. Keeping in view the apprehension entertained by the petitioner we have looked into the entire issue and we find the Magisterial Order dated 3.7.2010 in connection with Case No.C/229/10 clearly repeats on the basis of the Police Report that the little child is a student of Class-ll in Vivekananda Math Nivedita Vidyapith, Barrackpore. As such, on the first score the apprehension of the petitioner cannot be sustained. So far as the atmosphere not being conducive in the house of her grandparents, we also feel we cannot share the views in this area. After all the little child has lost her mother. Nothing more can be unfortunate than this. As such, on the first score the apprehension of the petitioner cannot be sustained. So far as the atmosphere not being conducive in the house of her grandparents, we also feel we cannot share the views in this area. After all the little child has lost her mother. Nothing more can be unfortunate than this. After all the grandparents particularly the grandmother with whom the said little child had come to the Court is nothing but an extension of her deceased mother. She would have all the love and affection franchised from the said lady who is none else but her mother's mother. 7. TO reap apart the little child from her natural soil and to plant her in her legal area would be extremely a cruel act on behalf of the Court. 8. THE traditional view with regard to the paramount consideration being left about the welfare of the child remains undisturbed since time immemorial. In this Context we are very much emboldened by the decision of Nilratan Kundu and Anr. v. Abhijit Kundu, reported in (2008)9 SCC 413 . In a similar situation the Supreme Court had refused to grant the custody of the child in favour of the father. Having a wholesome view of the entire issue in question we feel that prima facie case for our intervention in this matter has not been made out. On the contrary, we fell that it would be appropriate that the little child resides in the care, custody, affection and the shadow of her grandparents which even if may not give any relief for the great loss she had suffered but would at least have some succor in her innocent mind. Application is dismissed. No order as to costs.