Court: CALCUTTA HIGH COURT
Bench: JUSTICE R.K. Bag
KALYAN ROY Vs. PRIYANKA ROY (BANERJEE) On 27 July 2015
Minor daughter happy in the family of her father. Child is looked after by the grandmother. Custody of a child to remain with petitioner father.
The petitioner has challenged the order dated May 18, 2015 passed by learned Sessions Judge, Birbhum in Criminal Appeal No. 03 of 2015 reversing the order passed by learned Magistrate by filing this revision under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973.
2. It appears from the record that the opposite party filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as PWDV Act) against the petitioner and other in-laws of the opposite party before the Court of learned Chief Judicial Magistrate, Birbhum. The opposite party prayed for a protection order under Section 18 of the PWDV Act and custody of her minor daughter under Section 21 of PWDV Act. By order dated January 6, 2015, learned Magistrate refused to hand over the custody of the minor daughter from the petitioner/father to the opposite party/mother. The said order of learned Magistrate was challenged by the opposite party before learned Sessions Judge, Birbhum. Learned Sessions Judge, Birbhum disposed of the said Criminal Appeal No. 03 of 2015 by giving direction to the petitioner/father to hand over the custody of the minor child to the opposite party/mother. The said judgment and order dated May 18, 2015 passed by learned Sessions Judge, Birbhum in Criminal Appeal No. 03 of 2015 is under challenge in this revision.
3. Mr. Bhattacharya, learned Senior Counsel appearing on behalf of the petitioner, contends that the opposite party prayed for custody of the minor daughter without praying for specific protection order before the Court of learned Magistrate. He further submits that the minor daughter of the petitioner is admitted to the school and she is looked after by the petitioner who happens to be the father of the minor daughter. Mr. Bhattacharya argues that the minor daughter is not willing to live with the opposite party/mother and she started crying when she was asked to accompany the opposite party/mother even for a single day by an interim order of this Court. According to Mr. Bhattacharya, learned Sessions Judge did not assign valid reasons for changing the custody of the child who is happy in the present custody of the petitioner/father.
4. Mr. Dey, learned Counsel appearing on behalf of the opposite party/mother, argues that the mother is willing to take care of the minor daughter and that the opposite party is compelled to live in the house of her parents. However, Mr. Dey fairly submits that the child was not willing to accompany the opposite party/mother when the Court gave direction to the petitioner to hand over the custody of the child in favour of the opposite party/mother for a single day by passing an interim order. According to Mr. Dey, the order passed by learned Sessions Judge by changing the custody of the child from the petitioner/father to the opposite party/mother is justified under the law.
5. Admittedly, the opposite party was married to the petitioner on June 21, 2008 and the daughter named Manisha was born on May 16, 2009 from the said wedlock. It is alleged by the opposite party in the application filed before the Trial Court that the strained relationship developed between the petitioner and the opposite party due to continuous ill-treatment of the opposite party by the petitioner. It is also alleged in the said application by the opposite party that she was subjected to cruelty by the petitioner and her in-laws while she lived with the petitioner in the matrimonial home. Ultimately, on April 22, 2014 the opposite party left the matrimonial home and started living with her parents and the minor daughter remained in the custody of the petitioner/father. It is not the case of the opposite party that the minor daughter was not looked after properly by the petitioner/father. On the contrary, the minor daughter is not willing to live with the opposite party/mother. I am informed that the minor daughter is admitted to the school by the petitioner/father and she is studying under the supervision of two private tutors on regular basis at the cost provided by the petitioner/father. I am also informed that the child is looked after by the grandmother who lives with the petitioner in the matrimonial home. It is well-settled that the custody of a child is to be decided by the Court by taking into consideration the paramount interest of the child. Since the child is looked after by the father who is an employee of Government undertaking company and the child is happy in the family of the father and grandmother and the child is not willing to live with the opposite party/mother, I am not inclined to change the custody of the child for the best interest of the child. However, the opposite party/mother should not be deprived of the visiting right, as the child also should develop her relationship with her mother and enjoy the love and affection of her mother. I am informed by learned Counsel representing both the parties that the opposite party/mother may meet the minor daughter in the residence of one Somnath Chatterjee who happens to be the husband of sister-in-law of the opposite party and who resides at Suri Housing Complex. This visiting right of the opposite party/wife can be exercised on 2nd and 4th Wednesday of every month and the petitioner/husband must bring the minor daughter to the house of Mr. Somnath Chatterjee on the dates fixed by the Court. In view of my above findings, the judgment and order passed by learned Sessions Judge, Birbhum on May 18, 2015 in Criminal Appeal No. 03 of 2015 by reversing the order passed by learned Magistrate is hereby set aside.
6. The minor daughter Manisha will remain in the custody of the petitioner/father temporarily till appropriate order of custody is passed by learned District Judge under the Guardians and Wards Act. The opposite party/mother will have the visiting right to meet the minor daughter on 2nd and 4th Wednesday of every month in between 9 O’clock in the morning and 5 O’clock in the evening in the house of Mr. Somnath Chatterjee who is residing at Suri Housing Complex in the District of Birbhum. The petitioner/father will escort the minor daughter to the house of Mr. Somnath Chatterjee on the scheduled date and time for the exercise of visiting right by the opposite party/mother. With the above direction, the Criminal Revision is disposed of.
The urgent photostat certified copy of the judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.