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1994 Supreme(Cal) 391
High Court Of Calcutta
SAMARESH BANERJEE
ALOKE SARKAR - Appellant
Versus
ANINDITA SARKAR NEE BASU - Respondent
C. O. 1838a Of 1994
Decided On : 12/23/1994
A.ROY CHOUDHURY, BIKASH RANJAN BHATTACHARJI, GANESH CHANDRA PANDA
The welfare of the child is the primary consideration in custody matters. The legal rights of the parents are secondary to the child's best interests.
Headnote:
Hindu Marriage Act - Section 26 - The Court may pass interim orders and make provisions in the decree regarding the custody, maintenance, and education of minor children, consistently with their wishes, wherever possible. The welfare of the child is the paramount consideration in deciding custody matters. The legal rights of the parents are secondary to the child's best interests. The Court must consider various factors, including the child's age, social background, educational opportunities, and the atmosphere at home, in determining custody.
Fact of the Case:
The husband filed for dissolution of marriage on grounds of cruelty and desertion. The wife filed an application for custody of their 6-year-old child. The husband claimed that the child was admitted to a hostel for better education, while the wife argued that the child's welfare and development would be better served with her. The Trial Court granted custody to the mother, considering the child's age and the educational and cultural atmosphere in the mother's family.
Finding of the Court:
The Court considered the welfare of the child as the paramount consideration in deciding custody. It noted that the child's age and the fact that he was kept in a hostel indicated that the father, being a businessman, had little time to devote to the child. The Court also considered the educational qualifications and cultural atmosphere in the mother's family. It held that the child's education and overall development would be better served with the mother.
Ratio Decidendi: The welfare of the child is the primary consideration in custody matters. The legal rights of the parents are secondary to the child's best interests. The Court must consider various factors, including the child's age, social background, educational opportunities, and the atmosphere at home, in determining custody.
Result: The Court affirmed the Trial Court's decision to grant custody to the mother, dismissing the husband's application for revision. The Court held that there was no jurisdictional error in the Trial Court's decision and that the welfare of the child was adequately considered.
( 1 ) THE instant revisional application is directed against Order No. 9 dated 26. 9. 1994 passed by Shri S. B. Aich, learned Additional District Judge, 13th Court, Alipore in Matrimonial Suit No. 15 of 1994. allowing the application of the opposite party for custody of a male child under section 26 of the Hindu Marriage Act, 1955.
( 2 ) THE aforesaid suit, which is now pending before the Trial Court, was filed by the husband, the present petitioner against the opposite party for dissolution of marriage on the alleged ground of cruelty and desertion.
( 3 ) IN the aforesaid suit the wife being the opposite party herein, filed an application under section 26 of the Hindu Marriage Act for custody of the male child of the parties aged about 6 years. In the aforesaid application made by the opposite party it was, inter alia, pleaded by the opposite party that after driving out the opposite party from her matrimonial home, the husband being the present petitioner has forcibly detained the child aged 6 years, born out of the lawful wedlock of the parties; that the child was admitted in Sunshine School at Kurseong by the petitioner against the wish of the opposite party only to separate the child from the mother, although she was very careful and attentive to the child and due to nature of his pre-occupation the father could not devote any time for the upbringing of the child; that because of separation from the mother the child was forced to live in a school hostel feeling emotional starvation, a situation which is not at all conducive to the happy and healthy growth of the child; as the opposite party is not getting any access to the child due to instruction given by the petitioner to the school authorities the natural upbringing and growth of the child is being disturbed and if such a situation is permitted to continue for a longer period, the same shall cause permanent damage to the over all intellectual, mental and physical growth of the child; that the petitioner has recently come to know that the child has been brought to Calcutta and is at present staying with the father; under such circumstances the custody of the child should be restored to the mother for proper maintenance and education as during the formative years of the development of mental faculty of the child, the company of the mother is very much needed.
( 4 ) SUBSEQUENT to the filing of the aforesaid application the petitioner filed a supplementary to such application before the Trial Court incorporating additional facts and/or statements in connection with the aforesaid application under section 26 of the Hindu Marriage Act. In the aforesaid supplementary number of allegations were made by the opposite party against the petitioner. It was pleaded inter alia that the husband is addicted to alcohol and leads unethical life and passes his days with bad women; that the husband keeps association with culprits and bad women and in such atmosphere the child cannot get proper education; that the husband is inferior in educational qualification to the wife who is an ordinary graduate, whereas the wife is Master Degree holder, along with other certificates; while wife belongs to a society of culture, the husband is not; the husband stays in a Railway Quarter unauthorisedly for the purpose of leading an unsocial life with another lady, and therefore, such an atmosphere is not at all congenial to the proper development of the child; the family members of the husband are uneducated and there is no member in his family except the old and aged grandmother and grandfather of the child who cannot look after the child properly; but on the other hand family members of the wife are highly educated and well established.
( 5 ) FOR all these reasons, it is pleaded in the said supplementary that the welfare of the child and his proper mental and physical development can only achieve if the child remains with the mother.
( 6 ) THE aforesaid application was contested
