Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Cal) 1339

IN THE HIGH COURT AT CALCUTTA
BISWAROOP CHOWDHURY, J.
Rishi Agarwal – Appellant
Versus
Dipika Agarwal Nee Khaitan – Respondents
C.O. 1389 of 2023
Decided on : 24-05-2024

Advocates:
Advocate Appeared:
For the petitioner: Mr. Uday Gupta, Sr. Adv., Ms. Bishalaxmi Ghosh, Adv., Mr. Amit Bikram Mahata, Adv.
For the opposite party : Ms. Amrita Mitra, Adv., Mr. Arindam Paul, Adv., Ms. Debarati Das, Adv., Ms. Jayeeta Das, Adv., Ms. Dipannita Dutta, Advs.

The paramount consideration in custody disputes is the welfare of the child, over parental rights or allegations against a parent.

Headnote:(A) Guardians and Wards Act, 1890 - Sections 12 and 25 - This revisional application challenges the order rejecting the interim custody of a minor child. The Trial Court framed its ruling emphasizing that the welfare of the child is paramount, deciding this in the context of temporary custody while the main custody case was pending. Both parties are natural guardians with competing claims. The petitioner argued that maternal employment poses a risk to the child's welfare, whereas the respondent maintained that the child is well-adjusted and that uprooting her would be detrimental. Court emphasized that the child's ongoing well-being and environment are crucial. The Court found that the mother provided a conducive atmosphere, dismissing the father's claims regarding custody and the mother’s alleged misconduct, affirming that the child's continuity in current schooling was beneficial. The final order confirmed the Trial Court's decision, modifying visitation rights appropriately. (Paras 19, 20, 26, 27, 28, 30, 31, 32, 42)

Table of Content
1. factual background of the marital relationship and custody dispute. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7)
2. history of legal proceedings regarding custody. (Para 8 , 9 , 10)
3. further legal actions regarding custody and jurisdiction issues. (Para 11 , 12 , 13 , 14)
4. petitions filed in response to previous judgments. (Para 15 , 16 , 17)
5. petitioner's arguments regarding the child's welfare. (Para 18 , 19 , 21)

JUDGMENT :

Biswaroop Chowdhury, J.

This revisional application is directed against the order No-51 dated 11.04.2023 passed by Learned Additional District Judge 10th Court at Alipore 24 Parganas (s) in Act VIII case No-17 of 2019, in an application under Section12 of the Guardians and Wards Act read with Section 151 CPC and Order XXXIX Rule 1 and 2 CPC filed by the petitioner/father Rishi Agarwal. The Learned Trial Court by Order dated 11.04.2023 was pleased to reject the prayer for temporary/interim custody of the child made by the petitioner.

The Petitioner being aggrieved by the order of the Learned Trial Court has come up with the instant application.

The case of the petitioner may be summed up thus.

1. The petitioner and the opposite party/respondent got married as per the Hindu rites and ceremonies at Kolkata on 24-11-2012, and on 7-01-2013 the marriage was registered.

2. On 23-10-2013 a female child was born to the parties, and in the year 2016, the child was admitted to Lower Nursery Standard in La Martinere for Girls school Kolkata.

3. In the year 2017, the child was promoted to Upper Nursery Standard in La Martinere for Girls school Kolkata. On 24-11-2018 the Respondent/opposite party of her own volition left the matrimonial home along with the child and started staying at South City Residency Flat No. 5B, Tower III 375, Prince Anwar Shah Road, Kolkata-700068 and the Child attended La Martiniere for Girls School, Kolkata, while residing in the said flat till the initiation of winter vacations for the year 2018. The said flat belongs to the father of the respondent.

4. On 25-11-2018, Respondent came back to the matrimonial home, to collect her belongings and took all her belongings.

5. The Respondent issued an e-mail dated 16.01.2019 to the Administrator Head of the La Martiniere School for Girls, Kolkata stating that she was separating from the Petitioner due to personal reasons and that she was residing at her maternal house in Mallarpur, District Birbhum (West Bengal) and it was a matter of time that she would shift to Kolkata.

6. On 25-01-2019 the petitioner filed a suit for divorce against the Respondent before the Ld. Additional District Judge South 24 Parganas being MAT case No. 246/2019.

7. Again the Petitioner filed application under Section 25 of the Guardians and Wards Act 1890, dated 5-02-2019 before the Learned District Judge at Alipore South 24 Parganas and the same was registered as Act VIII case No-17 of 2019 against the Respondent along with an Interlocutory Application under Section 12 of the said Act.

The Prayers made in the application under Section 12 of the Guardians and Wards Act are as follows:

a) An Order of injunction restraining the Respondent from taking the child outside the jurisdiction of the Learned Court below without permission of the said Court.

b) An Order of injunction restraining the respondent from seeking any transfer certificate from La Martiniere School for Girls with respect to the minor daughter Sambhuti Agarwal, who is at present student of class K.G. in the said school.

c) An Order directing the Respondent to send the minor daughter Sambhuti Agarwal student of class KG in La Martiniere School for Girls, regularly for school;

d) An Order directing the Respondent to produce the minor daughter Sambhuti Agarwal at such place and time before the Petitioner and his family members.

e) An Order be passed for the temporary custody of the minor daughter and for her welfare and well being till the adjudication of the proceeding for grant of permanent custody.

f) Ad interim Order an