Shekhar Kumar Roy vs Jitendra Nath Dey & Anr

Abhijit Gangopadhyay, J

This appeal is against order No. 19 dated 13th July 2018 passed by the Additional District Judge, 3rd Court Howrah in Misc. Case No. 34 of 2016 which was an application under Section 19 of the Guardians and Wards Act, 1890 (hereinafter, referred to as the said Act).

The appellant Sekhar Kumar Roy married one Soma Roy, the daughter of the respondents herein namely Jitendra Nath Dey and Sandhya Dey. The marriage was solemnised on 31st May, 2000. Out of the wedlock a female child was born on 2nd June, 2007. The wife of the appellant Soma died of cancer on 7th October, 2009 living behind the minor daughter of less than 2 years of age.

The legal battle is in respect of title of guardian (the father) to custody of ward and appointment of maternal grand-parents of the minor as guardian of the minor.

After filing of the application (mentioned as Misc. Case No. 34 of 2016) by said Jitendra Nath Dey and his wife Sandhya Dey, (the grand-parents of the minor) under the said Act the appellant herein filed one application under Section 25 of the said Act in that Misc. case for custody of the minor child.

The said application under the said Act for appointment of guardian and the application of the appellant herein under Section 25 of the said Act for custody of the child was taken up together by the Court below and by order No. 19 dated 13th July, 2018 the said Misc. case was disposed of by granting interim custody of the child to the grand-parents (the respondents herein) and by the same order the application for custody of father of the child (i.e. Shekhar, the appellate herein) under Section 25 of the said Act was rejected.

In connection with the said appeal before this Court an application for injunction being CAN 893 of 2019 has also been filed. By consent of the parties the appeal and the application were taken up together for hearing by this Court.

Though many grounds have been taken by the appellant in the appeal, the only question which has been argued by the appellant before us is that the court below committed error in giving much importance to the statement of the child ignoring other factors and only the question of welfare and wellbeing of the child has been considered.

The facts of the case are follows :

a) According to the respondents herein their daughter Soma Roy was given in marriage with Sekhar Kumar Roy. It was Sekhar Kumar Roy's second marriage. Out of the wedlock a female child (Sataguna Roy) was born in the year 2007. In the year 2009 respondent's daughter expired from cancer leaving behind the daughter who was then less than two years old. After the death of Soma the appellant herein (Sekhar) admittedly kept the child in the custody of the respondents and Sekhar married again within 10 months from the date of the death of Soma.

Though the appellant has raised serious objection as to the observation of the Court below in counting the number of his marriage (three marriages) we find that the statement made by the respondents herein in the said application (in paragraph 6 thereof as to the 2nd marriage of appellant with Soma) was not specifically denied by the appellant herein in his written statement (in paragraph 13 thereof). Thus we also hold that after death of Soma the appellant herein contracted his 3rd marriage.

This 3rd marriage of the appellant was dissolved on 18th September, 2012 under Section 13-B of Hindu Marriage Act 1955.

b) It is not clear to this court precisely when the child was taken by her father after his 3rd marriage to his place of residence at Panchet in the State of Jharkhand. The appellant is an employee of Damodar Valley Corporation in Panchet, Jharkhand.

c) It is the allegation of the appellant that at the time of his illness in the year 2012, when he was hospitalized the respondents herein forcibly took away the child from his custody and thereafter did not allow him to meet the child and subsequently they demanded Rs. 2 lakh for returning the child to the custody of the appellant. In this regard the appellant lodged an FIR in Jharkhand and a criminal case was initiated against the miscreants including the respondent No.1 herein and respondent No. 1 was sentenced by the judgement and order of the Sessions court in the District of Dhanbad with rigorous imprisonment which judgment and order is now under the appeal.

In respect of the said application for appointment of guardian under the said Act the appellant raised objection by alleging that the respondents do not have proper means for upbringing the child and the child is being tortured and neglected in their custody and therefore, the child should be given to his custody as he is her biological father and therefore natural guardian in the eye of the law.

The Court below considered the entire matter, interacted with the child who had at the time was 11 years of age.

The child had intimated the Learned Judge of the Court below that she wanted to stay with her maternal grand-father and grand-mother (i.e. the respondents herein) and did not want to reside with her father as her father contracted another marriage after death of her mother and never gave her any wearing apparel and fooding, educational expenses and medical expenses.

The Court below after considering a large number of decided cases on the subject both of our country and of England and USA and on the basis of the interaction with the child and after hearing parties has allowed interim custody of the child to the respondents herein till the majority of the child and until further order from any competent Court of law. The court below made it clear that the present custody of the child was not being disturbed. The application for the father for the custody of the child was rejected.

In the course of the hearing of the appeal this Court time and again on different dates had wanted to know from the appellant whether he was ready and willing to spend money for better Schooling of the child and for her better maintenance while in the custody of the respondents with visitation right to which reply was always avoided on behalf of the father and on the contrary a condition was put by the appellant that if the custody was granted to him then only he would spend money for the child. This Court also explained to the appellant's counsel the method to create the emotional bonding gradually between the father and the minor daughter and how better education could be imparted to the child without uprooting the child from the present situation but the appellant refused to accept all such suggestions and remained obdurate with his condition as stated above.

Now, regarding the merit of the case we find that in such cases of custody, guardianship etc. of a child the paramount consideration is the welfare and wellbeing of the child. In a judgment of this Court reported in (2017) 2 CHN 559 (Purbayan Chatterjee -vs- Sanghita Chatterjee) it has been held that "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". In the said judgment this Court also held that there is nothing which "brindles or fetters the Court in exercising parens patriae jurisdiction in a matter relating to the custody of the minor child" and referring to several judgments of the Supreme Court it was further held that the "sudden change of arrangement which continued for a long time is certainly not in interest and welfare of the child".

Here in this case from the facts and circumstances as above and in view of the wish expressed by the child before the trial Judge we do not want to uproot the child from her present situation by interfering with the order passed by the trial Judge.

In this respect the learned Advocate of the respondent have relied upon the case of Rosy Jacob reported in (1973) 1 SCC 840 and drew our attention to paragraph 15 of the said judgment which is again quoted by the Hon'ble Supreme Court of India in Criminal appeal No. 838 of 2019 (Tejaswini Gaud and others. -vs- Shekhar Jagdish Prasad Tewari and others.). Relevant part of Paragraph 15 of the said judgment of Rosy Jacob is required to be quoted :

"15. ... The children are not mere chattels: nor are they mere play-things for their parents.

Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them".

From the facts and circumstances of the case as appears from the pleading of the parties before this Court and also the Court below, from the submissions made by the parties and from the response of the appellants to the Court's questions as has been stated above, we find that the appellant father is much more interested in seeing that his own wish prevails over the fundamental question of welfare and wellbeing of the child. We thus do not find him a fit person with whom the welfare and wellbeing of the child would lie though he is the natural guardian of the child in the eye of law. In the facts and circumstances of the case, this Court holds that the appellant is not entitled to the custody of the ward. We do not find that the Court below has committed any mistake in assessing the situation and in proper understanding of the child's wish and welfare and wellbeing who prefers staying with her maternal grand-parents. From the whole episode we find that real reflection of love and affection of a father to his child i.e. the emotional bonding required in the development of the child is conspicuous by absence between the appellant and his daughter.

The appellant has described the statement of the child before the Judge as to not providing her any clothing and other basic needs to her by her father as tutored evidence, but the father has failed to show that he ever sent any money to the custodian of the child for spending for the purpose of the child while she remains in the custody of her maternal grandparents. Before this Court also he has not expressed any willingness to spend any money for the child if the child remains in the custody of her grandparents, where the child wants to stay instead of staying with her father.

In such circumstances we do not find any merit in the appeal

and we direct the appellant to keep an amount of Rs. 1,00,000.00 (Rupees one lakh only) in fixed deposit within 2 months from the date of this order in any Nationalized Bank in Kolkata in the name of the child for a period of 10 years from the date of creating the fixed deposit and to handover the said fixed deposit receipt to the Registrar General of this Court within a period of 2 weeks from the date of creating the fixed deposit and the Registrar General shall, in turn, handover the same to the respondents No. 1 and 2 within a period of four weeks from the date of receipt of the fixed deposit from the appellant. We make it clear that this amount will be over and above the maintenance to be paid to the child by the appellant/father if any order in this regard is passed by any competent Court of law and this amount will never to be adjusted with the said amount of maintenance, if any. The appeal is dismissed.