Calcutta High Court Bench comprising Justice Bivas Pattanayak and Joymalya Bagchi granted custody of four and a half years old baby girl to the family friend of the deceased mother instead of her biological father, taking into consideration the fact that the minor girl was well adjusted in the family of her Mother’s Friend. Along with this, the Court granted visitation rights to the Biological father to promote the daughter-father bonding at this tender age.
Background
Minor Ally Das was born in the house of her mother on 6th August 2017. Her mother committed suicide on 7th March 2018. The appellant/ father was arrested in connection with the criminal case registered over the suicide.
Subsequently, her father took out an application seeking custody of the minor, who, at that material time, was in the custody of her maternal grandmother, Kajal Saha. By the impugned judgment, the court below, upon considering the facts and circumstances of the case, directed the minor to remain in the custody of said Kajal Saha till she attained 15 years of age and was in a position to make a conscious decision with regard to her own custody.
During the pendency of the appeal, the said Kajal Saha also committed suicide and the child was put in the care of the intervenor Julie Roy, a neighbour and a distant relation of the mother of the child. As the paramount duty of the Court is to ensure the safety and well being of the minor, the Court directed Julie Roy to file an affidavit disclosing the circumstances in which the minor was put in her care and the steps taken by her with regard to the minor’s well being. Pursuant thereto, the present affidavit was filed.
Submissions made
It was averred in the affidavit due to in the absence of any responsible member in the immediate family of the deceased Kajal Saha, Julie Roy, a family friend and distant relation, has taken over care and custody of the child. It was further averred that the deponent Julie Roy has had a deep connection with the child since her birth and the child is comfortable in her care and custody.
Mr. Basu, learned senior counsel appearing for the appellant/father, submitted that the custody of the child be handed over to him as he is the biological father. He added that Julie Roy, the deponent, is no way related to the child and the appellant/father is best suited to take care of the child under the present circumstances. He referred to a decision of the Apex Court in “Tejaswini Gaud and Ors. v. Shekhar Jagdish Prasad Tewari and others” (2019)
Order of the Court
The court in its order stated that there is No doubt that the appellant is the father of the minor Ally Das. However, the child, who is presently 4½ years of age, was brought up at the residence of her matrimonial grandmother and after her death in the custody of Julie Roy, a close family friend and neighbour of the grandmother. It was contended on her behalf that she had a day to day association with the growth and development of the child. Hence, it may be inferred that the child is accustomed to her company.
A co-ordinate bench had earlier directed visitation rights to the appellant between 11.00 a.m. to 2.00 p.m. on every alternate Saturday at the chamber of the learned advocate-on-record of the deceased grandmother. However, due to certain disputes, such a visitation order was withdrawn. The situation has substantially changed as the grandmother who was in the custody of the child, is no longer alive.
In the interest of the minor child Court said that,
“It is strongly contended that the child is well adjusted with the intervenor Julie Roy and immediate transfer of her custody to the father would be traumatic for the child. However, it must also be borne in mind that a bond between the child and her natural father ought to be encouraged from tender age. Such bonding is not an assertion of right of the father but a step towards wholesome development of a minor vis-a-vis her natural parents. In order to enable such a situation and ensure a balance development of the minor, we direct that the minor be handed over to the appellant at 9.00 a.m. on two consecutive Saturdays respectively from the residence of Julie Roy and the appellant shall hand back the minor to the said Julie Roy at her residence at 9.00 p.m. on those dates. The handing over and taking back of the child as aforesaid, shall be in the presence of the learned advocates-on-record of the appellant as well as the intervenor Julie Roy. It is expected that the parties shall act in terms of this order and the best interest of the child.”
Moreover, this Hon'ble Bench comprising Justice Ajoy Kumar Mukherjee and Justice Soumen Sen vide its order dated 29 November 2021 said that,
“Considering the tender age of the child, we direct the Child Welfare Officer to interact with the child exclusively and in absence of the parties at his office or at his suitable place and file a report in a sealed envelope on the adjourned date. We request the Child Welfare Officer to be present on the adjourned date. This order shall immediately be communicated by the Secretary, Juvenile Justice Committee to the Child Welfare Officer of the District concerned for immediate implementation. Any inconvenience caused to the Child Welfare Officer by either of the parties shall be viewed seriously. The visitation right of the child as granted by the Coordinate Bench shall continue and it is agreed upon by the parties that the minor be handed over to the appellant at 9.00 a.m. on 4th December, 2021 from the residence of Julie Roy and the appellant shall hand back the minor to the said Julie Roy at her residence at 9.00 p.m. on the same date. We request the Child Welfare Officer not to disturb this visitation right and the Child Welfare Officer may interact with the child on any other dates at her convenience.”
Case Details
Case Title: Tushar Kanti Das v. Kajal Saha
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