Smt. Kadambari Das vs Sri Ranjan Kumar Behera

S. Abdul Nazeer, J.—In this case, the petitioner has called in question the validity of the order at Annexure ''A'' dated 15.12.2012 in G & W.C. No. 69/2010 on the file of the II Additional Principal Judge, Family Court at Bangalore whereby the court below has granted interim custody of the minor child Ritesh Behera to the respondent during the first half or during the second half of winter, summer and mid-term school vacations at the convenience of the child and also at the convenience of the petitioner. The respondent filed a petition in G & W.C. No. 69/2010 for appointing him as the guardian of the minor child Master Ritesh Behera born on 12.1.2007, presently, in the care and custody of the petitioner. In the said case, he filed an application for grant of interim custody of the minor child, which has been allowed by the Family Court.

Learned Counsel for the petitioner would contend that the petitioner is employed at Kolkatta. The child is aged about 6 years. The interim custody of the child cannot be given to her husband in terms of the impugned order. Petitioner has no objection for grant of visitation rights of the child to the respondent.

On the other hand, learned Counsel appearing for the respondent submits that respondent is well placed in life. He is a Software Engineer employed in a reputed company at Bangalore. It is in the interest of the minor child that he should be in the company of his father.

I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.

It is not in dispute that the marriage of the petitioner with the respondent was solemnized on 22.1.2006. The child was born on 12.1.2007. The respondent has filed a petition u/s 7 of the Guardian and Wards Act seeking custody of the minor child. In the said case, the application filed by the respondent was allowed in the following terms:

I.A. dated 19.10.2012 filed on behalf of the petitioner u/s 12 of the Guardians and Wards Act, 1890 read with Section 25 of the Guardians and Wards Act read with Section 10 of the Family Courts Act, 1984 and read with Section 151 CPC is allowed. The petitioner is entitled to interim custody of the minor son called Ritesh Behera during first half or during second half of winter, summer and mid-term school vacations at the convenience of the child and also at the convenience of the respondent. The petitioner shall intimate the respondent well in advance atleast seven days earlier so that it would be convenient for the respondent to arrange for handing over of the child to interim custody. After the receipt of proper communication, the respondent shall hand over the custody of the child to the petitioner either during the first half or during second half of every winter, summer and mid-term school vacations of the child. No costs.

The petitioner is now employed at Kolkatta. Materials on record would show that the child is studying in a school at Kolkatta. The petitioner and the respondent along with the child were staying at Bangalore till 2010. Thereafter, she went to Bhubaneswar, where her parents are living. From there, she went to Kolkatta and employed in a Software Company. It is well established 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. 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. As noticed, the respondent is employed at Bangalore and the petitioner is employed at Kolkatta. Both of them are Software Engineers. It is evident from the materials on record that in the divorce petition filed by the respondent in C.P. No. 734/2011 on the file of the Family Court at Bhubaneswar, he has filed a memo for withdrawal of the said case. In fact, he had filed an application in G & W.C. No. 69/2010 before the Family Court seeking a direction to the petitioner to furnish information regarding the school in which the child is studying and also the school fee structure so that he can bear the educational expenses. The said application was allowed by the Family Court on 5.1.2013. However, the petitioner has failed to furnish the information despite the said order. Perusal of the entire materials placed on record would indicate that the respondent is a caring father eager to be in the company of the child, which is also essential for the healthy growth of the child. I am of the view that the respondent should be permitted to have the company of the child without disturbing him from attending the school. The trial Court has passed the impugned order keeping in mind the welfare of the child. I do not find any error in the order. In addition to the direction of the trial Court, the petitioner is directed to bring the child to the Bangalore Mediation Centre, Bangalore and hand over the child to the respondent in the presence of the Director of BMC on a day mutually agreed by them. The respondent shall bear the travel expenses of the petitioner and also her stay at Bangalore when she comes to Bangalore for the aforesaid purpose. After the expiry of time fixed by the trial Court, the respondent is directed to take the child to the residence of the parents of the petitioner at Bhubaneswar and hand over the child to the petitioner in the presence of her parents with these observations, the writ petition is dismissed. No costs.