A legendary Sitar Player seeks custody of his kid, as he sees the kid loosing our in school and being neglected by the mother who has married a second time …. The father and the grandparents of the kid want to take custody and help the kid shine further ……. but ….
the father is a legendary artist /////////Shorn of unnecessary details the petitioner is renowned musician and acclaimed such recognition in the society as sitar player. The father of the petitioner was also an amateur sitar player and learnt such skill under the tutelage of two legendary maestros namely Pandit Nikhil Banerjee and Ustad Ali Akbar Khan. The mother of the petitioner was also an artist of All India Radio and performed in Doordarshan on many occasions. ////////
The father seeks custody because /////It is alleged that she frequently changed her job and leads a life of a bohemian roaming here and there in the suspicious manner and did not spare any time with the minor child. The child used to spend weekend not only with the petitioner but his grand parents and showed his indifferent attitude when handed over to the opposite party in the evening of Sundays. The son was admitted into a heritage school and because of the ill treatment and behaviour of the opposite party his performance in the school deteriorated and both the parties were called by the teacher, who pointed out that though he has a creative mind and potential but he is not performing well and therefore to be handled with sensitivity. It is further alleged that though the said some of Rs. 30 lakhs was given to the opposite party for the upbringing of the child yet she withdrew substantial amount for her use despite fact that the other expenditures including education fees are paid by the petitioner. //////
and the court concludes that the mother shall continue to have custody and the father could only have week end visits !!!
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
C.O. 2558 OF 2016
PRESENT: HON’BLE MR. JUSTICE HARISH TANDON
Mr. Biswajit Basu, Mr. Sharanya Chatterjee … For the Petitioner.
Mr. A.K. Bhattacharya, Mr. S. Gangopadhyay … For the Opposite Party.
Judgment On: 30.03.2017
This is an unfortunate litigation between warring parents for custody of the minor son even after the divorce by mutual consent. The father of the child initiated a proceeding under Section 25 of the Guardians and Wards Act for custody of the child, which is admittedly with the mother for his betterment and welfare. The proceeding faced several round of litigation before the Trial Court as well as this Court and a contempt proceeding for violation of this order passed by this Court in an earlier revisional application is pending.
Shorn of unnecessary details the petitioner is renowned musician and acclaimed such recognition in the society as sitar player. The father of the petitioner was also an amateur sitar player and learnt such skill under the tutelage of two legendary maestros namely Pandit Nikhil Banerjee and Ustad Ali Akbar Khan. The mother of the petitioner was also an artist of All India Radio and performed in Doordarshan on many occasions. The parties hereto, met in a concert and developed love and affection for each other and ultimately married under the Special Marriage Act, 1954 on 12th June, 2002. In the said wedlock a male child was born on 26th June, 2009, who is named Pratham Chatterjee and is currently seven years of age.
Subsequenly, the differences in such relationship cropped up and both the parties decided to live separately and ultimately agreed to dissolve the marriage by mutual consent and approached the District Judge, Barasat by filing Matrimonial Suit No. 1843 of 2012. The said suit was subsequently decreed on June 10, 2013 on the basis of their such consensus. It was averred in the said matrimonial suit that the petitioner would pay a sum of Rs. 30 lakhs towards the lump sum as one time payment of alimony and cost of bringing up the minor son apart from a flat in Eastern High Apartment, Rajarhat, New Town with its existing furniture and fixtures together with the covered car parking space to be gifted to the opposite party for her comfort living. The statements made in paragraphs 14 and 15 of the said application for mutual divorce are the center of disputes in the present litigation wherein it was agreed that the minor son would remain in the care and custody of the opposite party till he attains majority and the petitioner will have a visitation right and right to take the child on holidays and vacations. The opposite party shall consult the petitioner with regard to all major issues relating to the minor child’s education, health care and extra curricular activities so that the welfare of the child, which is paramount, is taken care of. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
The application under Section 25 of the Guardians and Wards Act came to be filed by the petitioner alleging that the opposite party is neglecting the minor son and is not properly taking care of. It is alleged that she frequently changed her job and leads a life of a bohemian roaming here and there in the suspicious manner and did not spare any time with the minor child. The child used to spend weekend not only with the petitioner but his grand parents and showed his indifferent attitude when handed over to the opposite party in the evening of Sundays. The son was admitted into a heritage school and because of the ill treatment and behaviour of the opposite party his performance in the school deteriorated and both the parties were called by the teacher, who pointed out that though he has a creative mind and potential but he is not performing well and therefore to be handled with sensitivity. It is further alleged that though the said some of Rs. 30 lakhs was given to the opposite party for the upbringing of the child yet she withdrew substantial amount for her use despite fact that the other expenditures including education fees are paid by the petitioner. The opposite party is attempting to remove the minor son from the jurisdiction of the Court and have not been allowed to study in the heritage school and the opposite party is contemplating to admit him to some other school in violation of the understanding of the parties reflected in the application for divorce by mutual consent. In the backdrop of the aforesaid facts, the relief is claimed in the said proceeding not only for an order restraining the respondents from removing the minor son from the jurisdiction of the Court and from the school where he is currently studying but also to produce the same before the Court and to give interim custody to the petitioner on every Friday evening till Sunday evening.
Apropos the parent proceedings various interlocutory applications under Section 12 of the said Act is taken out and when the petitioner feels that the opposite party is attempting to remove the minor son from the jurisdiction of the Court and refusing to hand over the custody during the weekends. Before the Court proceeds to pass any interim order and directed the said applications to be kept on record, the petitioner approached this Court under Article 227 of the Constitution of India by filing C.O. 1256 of 2016 for interim order. The said revisional application was disposed of on 20th April, 2016 restraining the opposite party to remove the minor son from the heritage school and to act in derogation of Clauses 14 and 15 of the divorce application, this Court further directed the opposite party to appear before the Trial Court on the date so fixed along with the child and the Trial Court was directed to dispose of the said application for interim protection.
According to the petitioner, the said order was communicated but despite the same there was reluctance on the part of the opposite party in complying the said order and a contempt application is pending before this Court. Subsequently, the Trial Court took up the application under Section 12 of the Act and allowed the same permitting the petitioner to visit the minor son after consulting with the opposite party according to their choice and desire until further order and further restrained the opposite party from removing the minor son from the heritage school. Ultimately the said application is disposed of by passing the impugned order whereby and whereunder the minor son was allowed to remain under the custody of his mother till he attains majority. It was further ordered that the school in which he is currently studying i.e. Delhi Public School, should not be disturbed as it is in his interest, welfare and betterment and the petitioner was permitted to visit the minor son on every Fridays starts between 4 to 6 p.m. and was further permitted to take him in his house at 4 p.m. and return the same within the time indicated therein.
The present revisional application is filed challenging the said order for the simple reason that it was all along an understanding between the parties that the child would remain in his interim custody during the weekends and limiting the time of visitation would not be in the interest and welfare of the child.
At the time of moving the revisional application I decided to interact with the parents as well the child on September 27, 2016. The matter was thereafter mentioned because of the ensuing long vacation of the Court so that the interim arrangement of visitation may not be disturbed. The matter was thereafter listed on 3rd October, 2016 and the following order was passed:- “I had an occasion to interact with the parties and the child in my chamber on September 27, 2016. The revisional application was thereafter adjourned till November 3, 2016. Both the counsels mentions this matter to be taken up before the next date fixed by this court.According to the petitioner, because of the ensuing long vacation of this court there should be an interim arrangement so that the visitation is not interrupted and/or disrupted from any corner. I have personally assessed the child during my interaction as well as the parties to the proceeding. This court feels that the visitation should continue until further order to be passed by this court which appears to be for the welfare of the child. The father appears to be a Musician and travels abroad to attend the concert. The child used to spend time with the grandparents as well during weekend when the father was available in the town. An apprehension is shown that the visitation to the grandparents may not be allowed if the father is away from the town. This court feels that the law does not deter or prevent the grandparents to visit the grandchild, more particularly, in a society to which all the parties belong. This court allows the visitation of the grandchild on every weekend, who shall remain in the custody either of the father or the grandparents and will be returned to the wife in the evening of every Sunday. Since there are some sentiments attached to the 2 grandparents during the Puja Vacation, this court also permit the father and/or the grandparents to spend two days with the grandchild as may be mutually agreed by and between the parties. Either the father or the grandparents may take the custody of the child from the mother in the evening of every Friday and shall return the child to the mother in the evening of the Sunday before 09.00 P.M.. Let the matter be fixed at 10.30 A.M. on November 3,2016 in the supplementary list.”
The aforesaid order was passed as I found during interaction with the minor son that he was not feeling comfortable in studying in the Heritage school and was happy with the present school i.e. Delhi Public School and narrated the incidents which he used to face in the erstwhile school. The opposite party was reluctant in sending the minor son to the house of the petitioner as she does not want that the child should interact with the grandparents. The grandparents were also interviewed by me and I found that they have lot of affection with the minor son and wanted to spend their time during the weekends with him. The child also did not show any indifferent behaviour or apathy in the company of the grandparents. The child did not narrate any incident which may remotely suggest that the company of the grandparents was not in the welfare of the child. What I perceived during such interaction was that the petitioner and the grandparents wanted the child to embark his journey in the pursuit of becoming a great musician; on the other hand, the mother wanted him to become an engineer and to settle abroad. Both the parties are imposing their aspiration on the minor son without caring to know his field of interest and his aim in the life. It is really a misery of life that the parents wanted their child to fulfil their desire rather than seeking the interest of the child. It would not be wrong to say that the minor son is being used as a pawn and swinging in lurch between the desire and aspiration of the warring parents. The child is not a chattel nor a property or commodity of the parents but should be dealt with extra care and caution, love, affection and sentiments, which are the virtues of the human life. The art of parenting the child is not just to provide basic needs of sustenance but to upbring with morality, ethnicity and good values as a human being.
There is nothing which brindles or fetters the Court in exercising parents patriae jurisdiction in a matter relating to the custody of the minor child. The first and foremost consideration which every Court must bear in mind is the welfare of the child which is paramount. The observation of the Supreme Court in case of Ashish Ranjan -Vs- Anupama Tandon & Anr. reported in (2010) 14 SCC 274 is aptly quoted below:- “19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. (Vide Elizabeth Dinshaw v. Arvand M. Dinshaw, Chandrakala Menon v. Vipin Menon, Nil Ratan Kundu v. Abhijit Kundu, Shilpa Aggarwal v. Aviral Mittal and Athar Hussain v. Syed Siraj Ahmed.)”
In case of Lekha -Vs- P. Anil Kumar reported in (2006) 13 SCC 555 the Apex Court held that even the father under the Hindu Law is a natural guardian of a minor male child yet the consideration which should weigh to the Court is the interest and welfare of the child despite the shortcomings either in the behaviour or otherwise in the following words:- “20. A man in his social capacity may be reckless or eccentric in certain respects and others may even develop a considerable distaste for his company with some justification but all that is a far cry from unfitness to have the natural solace of the company of one’s own children or for the duty of bringing them up in proper manner. Needless to say the respondent husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him properly and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is a responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children. 21. However, in the present case, we have to decide in the interest of the child as to who would be in a better position to look after the child’s welfare and interest. The general view that the courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu law, the father is the natural guardian of a minor after the age of six years, the court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the child’s needs and to arrange for his upbringing. It also has to be seen whether in view of his other commitments, the father is in any position to give personal attention to the child’s overall development. 22. As indicated hereinbefore, we have spoken to the child who, in our view, is intelligent and appears to be capable of expressing his preference. In fact, he has in no uncertain terms indicated his desire to stay with his mother. His mother’s second marriage, instead of proving to be a disadvantage, has proved to be beneficial for the child who seems to be happy and contented in his present situation and we do not think it would be right to unsettle the same.”
In the recent times the concept of larger family is eroding fastly. The concept of nuclear family is developing immensely and the bondage with the grandparents is diminishing because of the conservative mind of the people of the society. It is often said that the grandparents love the grandchild the most in preference to their own children. The grandparents inculcate the values in life and strengthen the upbringing of the child to become a good samaritan from their experience, perseverance and ups and downs which they faced in their lives. The society cannot grow without inculcating the sense of responsibility, which a person owes to it since childhood.
In the instant case there is no sign in the minor child that he is uncomfortable or do not like the company of the grandparents in absence of the petitioner when he is away in attending the concerts outside the city. Minor son was happy and enjoying the company of the grandparents and there is no justification in the allegation of the opposite party that he is being tutored against her.
Furthermore, under the arrangement the child stays during the weekends with the petitioner or the grandparents and most of the times he is living with the opposite party and therefore the allegation above is baseless and sans truth. The sudden change of arrangement, which continued for a long time is certainly not in the interest and welfare of the child. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
This Court does not find any justification in the act of the opposite party in showing reluctance to send the child during the weekends to the house of the petitioner and the grandparents when such arrangements continued since after the decree for mutual divorce. The Trial Court did not record any special facts to discontinue with such arrangement and restricting the visitation to 5 (five) hours on every weekends.
The impugned order is thus modified to the extent that the opposite party shall hand over the interim custody of the minor child either to the petitioner or the grandparents in the evening of every Fridays. The child shall remain in such custody during the weekends and the petitioner or the grandparents shall return such custody to the opposite party in the evening of every Sundays.
The revisional application is thus disposed of.
However, there shall be no order as to costs.
(Harish Tandon, J.)
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