Saurov Kumar Mandal vs Madhura Das

The supplementary affidavit filed in Court today by the petitioner/father is kept on record.

It is categorically averred therein that the opposite party Smt. Madhura Das flouted the previous order of this Court directing the minor child of the parties to be given to the custody of the father from May 11, 2019 to May 14, 2019. Despite such order, it is alleged in the supplementary affidavit, the child was not permitted to go to the father.

The opposite party, although absent on the previous occasion despite direction of this Court, submits that she had come on the earlier occasion but was late due to a traffic snarl. As such, the absence of the opposite party on the earlier occasion is condoned.

The parties appear today in person and seek to present their respective cases in person, in view of the absence of the respective advocates due to the ongoing cease-work. As such, the parties are permitted to do so

The opposite party/mother submits that the child is not willing to go to the father at all. It is further submitted that on one of the previous occasions, the father had apparently administered some fruit juice to the child, upon which the child had fallen seriously ill. It is also submitted that the father also brought a bottle of water for the child which was entirely unnecessary.

As such, it is submitted by the mother that the child ought not to be forced to go to the father contrary to the wishes of the child.

It is seen from the tenor of the submissions of the opposite party that she has no intention to honour the previous direction of this Court and/or the compromise order which was passed at the behest of both sides. Whenever the compromise order is being sought to be implemented, be it in totality or by way of a short custody for three days, the mother is opposing such custody on the sole ground that the child is not willing to go to the father.

In such a scenario, it is obvious that the child is being tutored by the mother, with whom the child is residing for some years now. Hence, the child, who is about eight years old, cannot be said to have intelligent preference at the present juncture, sufficient to decide his own custody. However, keeping in mind the trauma which the child may have to face due to the change of custody, this Court had directed temporary custody only for a period of three days as a test measure.

This apart, any child will have a lop-sided development of character in the event he/she is deprived of the company of one of the parents or the family of such parents for an inordinately long period, being constantly advised against the said absentee parent in the custody of the other.

As such, it would only be healthy and in the interest of welfare of the child, that the child is kept in the custody of the father, albeit only for a short period for the present.

In such view of the matter, and in order to adhere to the intention expressed by the mother herself in the compromise order and to comply with the previous order of this Court, which was passed within the knowledge of the mother, the opposite party/mother is again directed to hand over the minor child of the parties to the petitioner/father tomorrow, that is, May 21, 2019 at 4.00 p.m. The petitioner/father is permitted to take help of the local police for the implementation of this order.

After taking custody of the child, the petitioner will take the child to the petitioner's residence and return the child to the mother on May 24, 2019 by 4.00 p.m.

It is made clear that this Court reposes its faith on the paternal love of the petitioner/father for his child (just as it does on the mother's love too), inasmuch as it is expected that, despite the mandatory nature of this order, the petitioner/father will be sensitive to the apprehended trauma to the child while taking him away from the custody of the mother.

It is further expected that in the event the petitioner feels that the child will be in extreme mental agony in the event he is kept in the custody of the petitioner for three days, the petitioner will be at liberty to make the period of custody shorter and return the child to the mother at an earlier date. However, the above observations do not dilute the direction incorporated in this order and it will be incumbent on the opposite party/mother to hand over the child to the petitioner at the time and hour as directed.

The local police is directed to act on a website copy of this order, if need be, without insisting on the certified copy thereof, for the purpose of implementation of the same.

The matter will next appear under the heading "Upgraded Matters" on June 12, 2019.