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1997 Supreme(Cal) 76
High Court Of Calcutta
TARUN CHATTERJEE, D. P. KUNDU
PRAVAT KUMAR SAHA - Appellant
Versus
DILIP PRAMANICK - Respondent
F. M. A. 318 Of 1996
Decided On : 02/18/1997
ASHOK BANERJEE, S.TALUKDAR, SAMOJIT SEN
Headnote:
GUARDIANS AND WARDS ACT - APPOINTMENT OF GUARDIAN - CUSTODY OF MINOR - WELFARE OF THE MINOR - PARAMOUNT CONSIDERATION - FATHER IS THE NATURAL GUARDIAN - UNLESS HE IS UNFIT OR NOT SUITABLE, HE CANNOT BE DEPRIVED OF HIS RIGHT TO CUSTODY - CUSTODY OF MINOR WITH FATHER - MATERNAL GRANDFATHER CAN MEET THE MINOR WITH PRIOR NOTICE TO THE FATHER.
Fact of the Case:
The appellant, maternal grandfather of the minor, filed an application under Sections 7, 8, and 10 of the Guardians and Wards Act, 1890, seeking to be appointed as the guardian of the minor and to have custody of the minor. The respondent, the father of the minor, filed an application under the same provisions of the Act, seeking to have the appellant's application dismissed and to have custody of the minor. The appellant argued that the respondent was not a suitable person to be the guardian or to have custody of the minor due to a pending criminal case against him and his parents, his financial situation, and the minor's emotional well-being. The respondent argued that the mere pendency of the criminal case did not make him unsuitable, that he was financially stable, and that the minor was happy and well-adjusted in his care.
Finding of the Court:
The court held that the mere pendency of a criminal case against the respondent did not make him unsuitable to be the guardian or to have custody of the minor. The court also held that the appellant's financial situation was not a sufficient reason to deprive the respondent of custody of the minor. The court further held that the minor's emotional well-being was best served by being in the custody of his father, with whom he had a strong bond. The court dismissed the appellant's application and granted custody of the minor to the respondent.
Issues: 1. Whether the pendency of a criminal case against the respondent made him unsuitable to be the guardian or to have custody of the minor? 2. Whether the appellant's financial situation was a sufficient reason to deprive the respondent of custody of the minor? 3. Whether the minor's emotional well-being was best served by being in the custody of his father, with whom he had a strong bond?
Ratio Decidendi: 1. The mere pendency of a criminal case against a parent does not make him or her unsuitable to be the guardian or to have custody of a minor. 2. The financial situation of a parent is not a sufficient reason to deprive him or her of custody of a minor, unless it is shown that the parent is unable to provide for the minor's basic needs. 3. The emotional well-being of a minor is best served by being in the custody of the parent with whom the minor has a strong bond.
Final Decision: The court dismissed the appellant's application and granted custody of the minor to the respondent.
( 1 ) THIS appeal is arising out of a judgment and order being Order No. 31, dated 1 4/02/1996 passed by Shri A. N. Sen, the Id. District Judge, Barasat, North 24-Parganas, in Act VIII Misc. Case No. 5 of 1994 dismissing the said Misc. Case on contest but without cost.
( 2 ) THE Act VIII Misc. Case No. 5 of 1994 was instituted by Pravat Kumar Saha, the appellant (hereinafter referred to as 'appellant') by filing an application under Sections 7, 8 and 10 of the Guardians and Wards Act, 1890 before the Ld. District Judge at Barasat, 24-Parganas (North) praying that appellant be appointed guardian of the person and property of the minor Shri Debankur Pramanick alias Bapi (hereinafter referred to as 'bapi' ) till he attains maturity and/ or majority. The respondent Dilip Pramanick (hereinafter referred to as 'respondent') who is the father of Bapi also filed an application under Sections 7, 8 and 10 of the Guardians and Wards Act, 1890 for recording 'no objection' of the respondent to the application of the appellant for appointment as guardian of the person and property of the minor Bapi till he attains the maturity and/or majority, However, subsequently the respondent in connection with the aforesaid Misc. Case filed the written objection and prayed for rejection of the petition filed by the appellant under Sections 7, 8 and 10 of the Guardians and Wards Act,, 1890 and directing the appellant to make over the minor Bapi to the custody of his father and natural guardian with immediate effect.
( 3 ) IT is an admitted fact that the marriage between the respondent and Smt. Papia, since deceased, the daughter of the appellant was solemnized on 12-8-91 according to Hindu rites and out of such marriage a son Debankur alias Bapi was born on 28/05/1992. On 21-10-93 Smt. Papia died at R. G. Kar Medical Hospital in an unnatural circumstances out of burn injury. At the time of burning she was staying with Bapi at the residence of her father, the appellant. In connection with the unfortunate death of Smt. Papia a criminal case being Khardah, P. S. Case No. 430, dated 22-10-93 under Sections 498-A and 306 of I. P. C. is pending against the respondent; and his parents and police has submitted change-sheet in connection with the said case.
( 4 ) ). In his application under Sections 7, 8 and 10 of the Guardians and Wards Act, 1890 the appellant, inter alia, stated that on sudden death of Smt. Papia the appellant got severely bereaved and was mentally distressed. The appellant could not hear the absence of his daughter. Smt. Papia and his grand son Bapi had given him consolation in the midst of sorrow. Bapi was, at that material time, growing up with the appellant, his wife and his two minor daughters. At that material time the father of Bapi, most of the days, used to stay at different places outside the residence due to his own professional assignments. The respondent, however was not mentally fit to bear the expenses of his minor son. Save and except the appellant, Bapi had no one to look after him. Since the death of Smt. Papia on 21-10-93, Bapi was being nurtured add looked after by the appellant at his house at 4, Elias Road, Calcutta-58 and Bapi used to reside ordinarily at the said house. The appellant waited to arrange the proper safety, security and protection of Bapi. The appellant has love and affection of Bapi and the appellant has also sufficient fund and resources to look after Bapi. Bapi at that material time, was conveniently staying at 4, Elias Road, Calcutta-58 with the appellant and the appellant thought that the welfare of Bapi, his upkeep, his proper maintenance, his education and well being at the house of the appellant would be properly suited for the growing mind and needs of Bapi. On the contrary, there is no one in the house of the respondent to take care of Bapi at Inda, Kharagpur, District Midnapore. At that material time the respondent was also staying with the appellant and Bapi at 4, Elias Road,
