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2008 Supreme(Cal) 573
BISWANATH SOMADDER, J.
Sajjan Sharma
versus
Dindayal Sharma.
C.O.No. 3361 of 2007 with C.A.N. No. 1005 of 2008
Decided on : 9 -6 -2008.
Saptangshu Basu, Ranjan Kali, Ms. Mitul Chakraborty, for Petitioner; Mainak Bose, Ankur Jain, Ms. Heera Jain, for Respondent.
The paramount welfare of the child is the primary consideration in custody matters.
Headnote:
Guardians and Wards Act, 1890 - The court considered the provisions of the Act in relation to custody matters and emphasized the paramount welfare of the child. The court also referred to various judgments to support its decision.
Fact of the Case:
The petitioner, the father of twin male children, filed an application for interim custody of the children. The court below decided that the custody should be retained by the maternal grandparents, but allowed the petitioner to meet the children on holidays and festive seasons. The court also gave liberty to the parties to seek modification of the order for the welfare of the children.
Finding of the Court:
The court considered various judgments and held that the paramount welfare of the child is the primary consideration in custody matters. The court emphasized that the child's immediate environment, emotional security, and happiness are crucial factors. The court appointed Special Officers to evaluate the children's welfare and allowed the petitioner to meet the children under their supervision.
Ratio Decidendi: The paramount welfare of the child is the primary consideration in custody matters, and each case must be decided based on the specific circumstances. The court should consider the child's immediate environment, emotional security, and happiness.
Result: The court appointed Special Officers to evaluate the children's welfare and allowed the petitioner to meet the children under their supervision. The Special Officers were directed to file comprehensive reports based on their evaluation.
2. The petitioner herein is the father of twin male children who are presently in the custody and home of their maternal grandparents at Ranchi.
3. The instant application was filed before this Court on 11th September, 2007. Consequently, the petitioner took out an application, being C.A.N. No. 1005 of 2008, which was initially moved during the last puja vacation with A.S.T.A. No. 1300 of 2007. By an order dated 5th November, 2007, the learned vacation Judge inter alia appointed Miss. Sumita Shaw a learned Advocate of this Court as a Special Officer to accompany the petitioner to Ranchi in order to enable him to visit his twin children at their maternal grandparents' home on November 7 and 8, 2007. The reasons for appointing Special Officer were recorded in detail in the order dated 5th November, 2007.
4. Thereafter, the instant matter appeared before Her Ladyship, the Hon'ble Justice Indira Banerjee on 18th December, 2007. Indira Banerjee, J., was pleased to give direction for filing affidavits on that day and directed the matter to appear as "contested application" on 22nd January, 2008 and further observed that if in the meanwhile the petitioner went to Ranchi, the opposite party was to allow the petitioner to visit the children and spend 2/3 hours with them. Subsequently, C.O. No. 3361 of 2007 came up before this Bench on 27th February, 2008. On that day, upon perusing the report of the Special Officer, this Court found that notwithstanding the order dated 5th September, 2007 appointing a learned Advocate as a Special Officer, no steps were taken by any of the parties to the instant proceeding, to act in terms of the said order. Considering the circumstances, this Court discharged the Special Officer and directed the matter to be placed for further consideration at a subsequent date.
5. On perusing the order impugned, being order dated 14th August, 2007, passed by the learned Additional District Judge, 4th First (Fast) Track Court (Incharge), Barrackpore, North 24-Parganas, it appears that the learned Court below was considering an application for interim custody of the twin children, claimed by the petitioner, being their father and natural guardian.
6. The facts of the case, carved out from the order impugned, are as follows :-
A marriage between Sajjan Sharma (being the petitioner herein), and Ambika Sharma (since deceased) was solemnized on 17-4-2003. Within their wedlock, twin male children, Vivek Sharma and Anant Sharma, were born on 11-8-2004. After their marriage the couple started residing at Dum Dum Road, Kolkata, within the jurisdiction of the Court wherefrom the impugned order emanates.
Sometime in May, 2006, Sajjan Sharma went to Moscow (Russia) with his father and his wife Ambika, along with their twin children.
On 25th July, 2006, at around 18.40 pm (Moscow time), Ambika fell down from tenth floor of their apartment in Moscow (Russia) and after one hour she was declared dead by a Moscow Hospital.
On 27th July, 2006, Sajjan Sharma informed his in-laws about the incident and requested them to reach Moscow (Russia) at the earliest.
After the completion of post-mortem examination at Moscow, the dead body of Ambika was brought to Calcutta from Moscow (Russia) on 2nd August, 2006. Her body was accompanied by her husband Sajjan Sharma and his father Mohan Lal Sharma and the twin children of Sajjan and Ambika.
Immediately after arriving at Dum Dum Airport on 2nd August, 2006 the airport police arrested Sajjan Sharma and his father Mohan Lal Sharma on the basis of a written complaint lodged by Dindayal Sharma, being the opposite party herein, who al
