w w w . L a w y e r S e r v i c e s . i n



Soma Das v/s Ranjit Das


Company & Directors' Information:- DAS & CO PVT LTD [Strike Off] CIN = U72100AS1946PTC000740

Company & Directors' Information:- DAS & DAS PVT LTD [Strike Off] CIN = U51109WB1950PTC019222

    Gua.P. No. 1 of 2013

    Decided On, 09 April 2015

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE N. CHAUDHURY

    For the Appellant: D. Chowdhury, Advocate. For the Respondent: HRA Choudhury, Sr. Advocate, R. Choudhury, Advocate.



Judgment Text

Judgment & Order (Oral):

1. This is an appeal under section 47 of the Guardians and Wards Act, 1890 wherein judgment and order dated 12.04.2013 passed by learned District Judge, Dhubri in Misc. (G) Case No. 8/2011 has been challenged.

2. This unfortunate legal battle is in regard to custody of a poor minor son of the parties who have parted their ways for last 7 years owing to difference between them. The appellant (Soma Das) was married to opposite party No. 1, namely, Ranjit Das in the year 2007 and out of their wedlock a male child named Ayush Das was born on 17.08.2008. Thereafter, differences cropped up between husband and wife leading to their separation. The appellant wife went back to her paternal home on 16.02.2010 allegedly on being tortured by the husband. She left behind the minor son in the custody of the respondent. After more than 9 (nine) months she filed an application before the District Judge at Dhubri under section 25 of the Guardians and Wards Act praying that she be appointed as natural guardian of her child and custody of the child be given to her. At the first instance, the learned District Judge passed an interim order directing the opposite party father to hand over the child to the mother. The interim order came under challenge before this court in CRP No. 57/2012 wherein this court passed an order on 16.02.2012 directing the learned District Judge to decide the guardianship issue within 2 (two) months. Accordingly, the learned District Judge passed an order dated 12.04.2012 allowing custody of the child in favour of the wife (appellant herein). This order was brought under challenge vide Gua.P. 1/2012 and this court by order dated 16.11.2012 allowed the appeal and remanded to the trial court for holding a fresh enquiry to ascertain the welfare of child sans legal rights of the parties. While remitting the case to the trial court this court did not disturb the custody of the child and thus the minor continued staying with his mother who is the appellant herein. After the remand, the learned trial court allowed both the parties to lead their respective evidence and thereupon disposed of the case by order 12.04.2013 holding that the claim of the wife as to financial soundness and accommodation for the child were contradictory and so it was directed that the custody of the child be given to the father who is in better financial condition to rear up the minor son. It is this judgment which is brought under challenge in the present appeal.

3. During pendency of this appeal, both the parties were called to this High Court and in camera proceeding was held in the Chambers of a Hon’ble Judge (Not me). Appellant produced the minor child who was about 6 years at that time and the learned Judge talked to both the parties and the child. The order dated 21.02.2014 is relevant in this regard which is quoted below:

'21.02.2014

Both the parties are present along with their learned counsel in my chamber at 1.45 pm. The appellant has produced the minor child, who is aged about 6 (six) years. It is stated that he is presently studying in K.G. Class. I have talked to both the parties and the child.

It appears that the child has been properly maintained by his mother and he has been admitted in school. Despite several attempts being made by the second party, the child refused to talk to him. The child even cried when the second party tried to embrace him. I feel that the child is comfortable and feels secured with his mother.

Let this matter be listed on 19.03.2014 for orders.

Sd/-

C.R. Sarma

Judge'

4. I have heard learned counsel for the parties. I have perused lower courts records including evidence adduced by the parties.

5. The findings of the learned trial court are based on 5 (five) grounds in paragraph 22 of the impugned judgment. It is held that the child was in the custody of father for initial 2 (two) years when he was looked after by the opposite party and his family members and there is no allegation that the child was not duly looked after by the father and his relations. The learned court thereafter considered the comparative financial soundness of the parties and held that the petitioner has not stated about the health of the minor and vaccination report of the minor in the application. The last and final reason for which custody was allowed in favour of the father was that accommodation for keeping the minor and income of the mother was not sufficient in comparison to that of the father. It is also pertinent to mention here that the learned trial court was aware about the judgment of the Hon’ble Supreme Court in the case of Jai Prakash Khadria v. Shyam Sundar Agarwalla reported in AIR 2000 SC 2172. In that judgment, the Hon’ble Supreme Court deprecated frequent change of custody of minor as the same would have adverse effect on the welfare of the child. But having noticed this judgment, the learned District Judge has not made any discussion as to why the law laid down in the aforesaid judgment was not applied to the case in hand. A perusal of the judgment passed by the learned District Judge shows that the only point for consideration before the court was who is more solvent to defray expenses required to rear up the child. The learned court did not make any enquiry as to whether the child would suffer any psychological set back if he is taken out of the custody of the mother where he has been since 2012. There is no allegation by the father that child was being tortured by the mother or her relations in her paternal house. Rather, the evidence of the wife shows that the paternal relations of the petitioner were extending all due cooperation so that the child is reared up in a good atmosphere. Ext. 1 admission form shows that the child has been studying in Bimala Prasad Chaliha Baby Land English Medium High School at Kokrajhar since December, 2012. Since the child has been staying with his mother for last 3 years, he must have settled psychologically in the environment already. The learned trial court did not consider this aspect of the matter as to what would be the effect on the psychology of the child if he is taken from this environment and placed at an altogether new environment.

6. Besides, if the wife is not financially solvent to defray the expenses for maintenance and education of the child in that event, there is scope for appropriate order directing the father to make payment and already a maintenance proceeding has been initiated by the wife in that respect. The financial soundness of the father alone cannot be the sole criterion for giving custody of a child to him. For all-round development and growth of a child, it is not financial soundness alone but natural love and affection also plays a vital role. Normally a minor son feels at home in the lap of his mother. The child is merely 7 years old and for last 3 years he has been staying in the custody of the mother. Had it been the case of the opposite party that the mother was not taking care of the child or that the relations of the mother were not favourable to rearing up of the child in the present accommodation in that event, the matter would have been altogether different. Here in this case, the mother is ready and willing to nurse and rear the child. She has not chosen for divorce and remarriage. The petitioner claims to be earning Rs. 7000/8000 per month by stitching and otherwise. On the other hand, as per submission of the learned counsel for the respondent, he has been earning Rs. 15,000/- per month. There is no doubt that comparative financial soundness of the parties cannot form basis for granting custody of a child. The learned court is to see as to whether child will get natural love and affection and a favourable atmosphere to grow up and whether his scope of getting good education is inhibited. Considering the evidence on record, it does not appear that opposite party made any attempt to establish that child is not being cared and looked after duly by the mother and her relations in the present environment. Prima facie, it appears that the child has been admitted to an English medium High School in Kokrajhar and he has been pursuing his studies. From perusal of the order dated 21.02.2014 passed in this appeal, this court earlier noticed that child has been properly maintained by his mother and he refused to talk to the father. Even the child cried out when the father wanted to embrace him and this led this court to hold that child is comfortable and feels secured with his mother. There is no allegation that he is

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suffering from malnutrition or any disease in the custody of the mother. That being the position, I am unable to sustain the order passed by the learned trial court. In this case I feel that paramount consideration being welfare of the child, the custody needs to be given to the mother in the present case. Considering the facts and circumstances, the impugned judgment and order is set aside and the appellant is permitted to retain the custody of the child till he attains adulthood. However, respondent shall have right to visit the child to which the appellant shall not make any obstruction. If the parties feel inconvenience in this regard, they shall be at liberty to approach the District Judge for resolution of the same. The appeal is allowed. 7. It is needless to say that findings of this court are only for the purpose of the present proceeding and not for any other pending disputes between the parties. 8. No order as to costs.
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