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2011 DIGILAW 1432 (CAL)

Bhabani Mallick v. Swapan Kumar Mallick

2011-11-22

HARISH TANDON

body2011
JUDGMENT HARISH TANDON, J. This revisional application is directed against an order dated 6th July, 2006 passed by the learned Additional District Judge, Kalna in Misc. Case No. 7 of 2002 by which an application under section 10 of the Guardians and Wards Act 1890 was allowed. 2. Before adverting to the points involved in this revisional application it is expedient to narrate the salient facts for the purpose of adjudication. 3. The parties before this court were married according to the Hindu rituals and rites and lived together in such capacity for the brief period. During their stay together, a female child was borne on 21st November 1996. It is alleged by the wife who is the petitioner before this court that she was subjected to the cruelty by her in-laws as well as the opposite party and was driven out of the matrimonial house in the year 1997 along with minor girl. She lodged a complaint under section 498 A of the Indian Penal Code which gave rise to the initiation of Misc. Case No. 44 of 1998 but was ultimately withdrawn on the promise of the opposite party that she will be treated with dignity and respect in the matrimonial house. 4. But the fortune turned fade again and she was compelled to leave the matrimonial home with the minor girl and took shelter of her parent at Suri. She claimed the maintenance by initiating a proceeding under section 125 of the Code of Criminal Procedure which was eventually allowed and the opposite party was directed to pay to the petitioner a sum of Rs. 1200/- each towards the maintenance of the petitioner as well as the minor daughter. 5. The said order was assailed by the opposite party before the District Judge, Birbhum and the quantum of maintenance was reduced to the sum of Rs. 1000/- for minor child but the quantum of maintenance was retained so far as the petitioner is concerned. 6. Being further aggrieved by the said order the opposite party filed a revisional application before this court which is still pending but this court by way of interim measure directed the opposite party to pay a sum of Rs. 1000/- to the petitioner and a sum of Rs. 800/- to the minor daughter. 7. 6. Being further aggrieved by the said order the opposite party filed a revisional application before this court which is still pending but this court by way of interim measure directed the opposite party to pay a sum of Rs. 1000/- to the petitioner and a sum of Rs. 800/- to the minor daughter. 7. The opposite party thereafter filed an application under section 10 of the Guardians and Wards Act 1890 praying for an order of custody of the minor daughter on the ground that being the father and natural guardian of the said minor child he cannot be deprived of her company. 8. In the objection filed by the petitioner to the said application it is contended that since birth of the minor child the petitioner is taking care of her and the opposite party never behaved like a father to her and as such he cannot claim the custody of the said child. 9. In support of their respective contentions the parties adduced evidence and the trial court allowed the said application by the impugned order. 10. Mr. Debabrata Dasgupta, learned Advocate appearing for the petitioner while assailing the said order submits that the trial court has proceeded on the sentiment that the father cannot be deprived of the custody of his child. He strenuously argues that the custody of the child was granted to the opposite party as the petitioner has no independent income which cannot be a ground for allowing an application under section 10 of the Guardians and Wards Act 1890. He further submits that the welfare of the child is the paramount consideration for adjudicating an application relating to the custody of the child. Lastly he contends that the order impugned is not sustainable. 11. Mr. Sukumar Ghosh, learned Advocate appearing for the opposite party submits that the welfare of the child is the primary consideration and the same lies in the custody of the opposite party as he is sufficient to cater the daily needs and bringing up of the minor girl. He further submits that the opposite party is the guardian under the Hindu Minority and Guardians Act and as such he is entitled to the custody of the minor girl. 12. He further submits that the opposite party is the guardian under the Hindu Minority and Guardians Act and as such he is entitled to the custody of the minor girl. 12. While contending that the court should consider the welfare of the child for considering an application for custody, he placed reliance upon a judgment of the Lahore High Court in case of Mt. Prem Kaur Vs. Iiarnam Singh & Ors. reported in AIR 1939 Lahore 125 and in case of Nirode Barani Debya & Anr. Vs. Bholanath Sarkar & Anr. reported in 26 Indian Cases 300. 13. Having considered the respective submissions made at the bar, the point emerges for consideration herein is whether the trial court could have passed an order of granting custody of the minor girl to the opposite party on the ground that the father is financially sound? 14. It is undisputed that the parties are at the logger’s head. They have been living separately for a considerable period of time. The petitioner is fighting for her survival as well as the survival of the minor daughter by initiating a proceeding for maintenance which is yet to attain finality as the revisional application before this court is pending. The minor girl who was born in the year 1997 by this time has attained the age of 14 years and is thus capable of understanding the relationship. 15. From perusal of the application under section 10 of the Guardians and Wards Act 1890 one can find that the claim for custody is laid on the basis that being the father and the natural guardian he cannot be deprived of the company of his own child. There is no whisper in the said application that the mother i.e. the petitioner herein is incapable to upbring the said daughter or the welfare of the daughter would be in not keeping her in the custody of the mother either because of her behaviour, chastity or character. 16. A faint reflection regarding the chastity and character of the petitioner is present in the impugned order, the foundation whereof was laid on the basis of one solitary fact that the petitioner lived alone for two or three months at Burdwan and has not disclosed the purpose of such stay. 16. A faint reflection regarding the chastity and character of the petitioner is present in the impugned order, the foundation whereof was laid on the basis of one solitary fact that the petitioner lived alone for two or three months at Burdwan and has not disclosed the purpose of such stay. Apart from the said solitary occasion there is no material produced by the opposite party wherefrom it can be held that the petitioner is staying away from her daughter in last 14 years. 17. What has really swayed the mind of the trial judge is that the father is financially sound and her future can be protected by giving custody to the father. It is further held that the wife is living on the charity of the others which cannot last longer. According to the trial court, the minor daughter should not be allowed to live on charity if the father is capable enough to meet her requirements. It would be expedient to quote the observation of the trial judge in this regard : “First of all, it is to be seen which of the parties is in the best position to serve the necessity of the minor. A castle cannot be built in the air, it must have its foundation on the earth upon a certain place. It must have a sub-stratum at a pace on the earth, ma it be very small. Having regard to the facts and circumstances of the case, I must say that the financial capacity is the said foundation which should be taken into consideration. If the parties are devoid of financial capacity they will not be able to make any progress and prosperity in the life of their ward. So, it is to be seen now which of the parties is in better financial capacity than the other it is in the evidence that the petitioner does service in the Military department of the country and that he also earns a good amount of salary. On the other hand, the OP/wife is a mere housewife; she has no source of income. It is true that she ahs got her daughter admitted into a school and that she has been bearing all expenses so far, necessary for maintenance and education of her daughter. But, how long will she be able to carry all such burden of her? It is true that she ahs got her daughter admitted into a school and that she has been bearing all expenses so far, necessary for maintenance and education of her daughter. But, how long will she be able to carry all such burden of her? It is stated in the written objection filed by the OP that she has been defraying all such costs with the help of her relatives. So, it is clear now that the expenses necessary for maintenance of her daughter is defrayed by charity. So, the question is how long a person can survive on such charity? A further question arises :- how long such charity may be available? We know very well that charity cannot be available day after day and a man grown a natural apathy against charity when approached to again and again and this natural apathy prevents a man from continuation of charity as long as the sun shines in the sky. So, a charity cannot last long. It must come to n end some day or other. When it will come to an end, what will be the fate of the daughter of the O.P? At this juncture of time, the OP and her daughter will have nothing but to lament in frustration. On the other hand, the father i.e. the petitioner has a financial satiety. He is able enough to maintain his daughter. He will never find any difficulty to lead his daughter go ahead in search of her career. Having regard to all these aspects, I am of the opinion that the petitioner is better placed in financial position than the OP and it will be wise enough to give the custody of the child to the petitioner.” 18. It is settled principle of law that in case of dispute between the mother and father regarding the custody of the child, the paramount consideration is the welfare of the child and not the legal right of either of the parties (see Veena Kapoor Vs. Varinder Kumar Kapoor (1981) 3 SCC 92 , Syed Saleemuddin Vs. Rukhsana Dr. (2001) 5 SCC 247 ). 19. Varinder Kumar Kapoor (1981) 3 SCC 92 , Syed Saleemuddin Vs. Rukhsana Dr. (2001) 5 SCC 247 ). 19. In case of Mausami Maitra Ganguli Vs, Jayant Ganguli reported in (2008) 7 SCC 673 the supreme Court held that even though there is a statutory presumption that the father is a better suited for the purpose of custody of the child but the same cannot be the sole determining factor. It is further held that the welfare of the child has to be considered while dealing with the case of the custody of a child and the same should be considered in the backdrop of each relevant facts and circumstances in following words : “19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably, the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. 20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. 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. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.” 20. In case of Gaurav Nagpal Vs. Sumedha Nagpal reported in (2009) 1 SCC 42 the Supreme Court observed that the paramount consideration of the court while determining the application relating to the custody of the minor child is the welfare of the child and not rights of the parties under the statute for the time being in force or what the party say. It is further held that the court should give due weightage to the child’s comfort, contentment, health, education, intellectual development, favourable surroundings, moral and ethical values etc. Thus the visage of the child is also one of the parameter while considering an application for custody. 21. In the instant case, the child was examined in the witness box where she has categorically stated that she does not want to go to the father because he beats her. She has further stated that the father never gave any gift to her. Even she denied in the cross examination that her father ever gave her a sweet whenever she comes to the court. From the evidence of the petitioner as well as the opposite party it is found that there are tutors engaged for the child and she is also studying in a school. The opposite party is in military service which is transferable job. According to the opposite party, he can bring his ailing mother to accompany the daughter and shall also engage the caretaker to look after her and the mother as well. It is admitted in the cross examination by the opposite party that the petitioner takes the daughter to the school and brings her back. Rather it is admitted that the opposite party could not produce any document to show that the petitioner is acting contrary to the interest of the minor. 22. Mere financial strength does not lead to a presumption that the child would be brought up comfortably as it requires various aspects viz. Rather it is admitted that the opposite party could not produce any document to show that the petitioner is acting contrary to the interest of the minor. 22. Mere financial strength does not lead to a presumption that the child would be brought up comfortably as it requires various aspects viz. ethical and moral values, contentment, health, education, intellectual development and favourable surroundings. It is not only the social, moral but the statutory obligation of the father to meet the expenses of the minor child. 23. Thus I find that the trial court has acted illegally and with material irregularity in passing the impugned order. The same is hereby set aside. 24. The revisional application is, therefore, allowed. 25. The application filed by the opposite party for custody of the minor child is dismissed with cost assessed at 200 GMs to be paid by the opposite party to the petitioner within two months from the date. In default of the payment of the said cost within the time stipulated hereinabove, the petitioner shall be entitled to recover the said amount as a decree. 26. Urgent photostat certified copy of this judgment, if applied for, be given to the parties on priority basis.