JUDGMENT :

Bivas Pattanayak, J.

1. This civil revisional application has been filed by the petitioner under Article 227 of the Constitution of India challenging Order No.89 dated 3^rd February, 2024 passed by learned Additional District Judge, 2^nd Court, at Siliguri in Misc. Case No. 1 of 2022 (arising out of Mat Suit No. 435 of 2021).

2. The brief fact of the case is that the opposite party filed application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights against the present petitioner being Mat Suit No. 435 of 2021. The opposite party also filed an application under Section 26 of the Hindu Marriage Act, 1955 being Misc. Case No. 1 of 2022 praying for custody of the minor daughter. The petitioner on the ground of cruelty filed an application for divorce under Section 13 of the Hindu Marriage Act, 1955 which has been registered as Mat Suit No. 114 of 2022. Upon joint prayers of the parties, both the suits being Mat Suit No. 435 of 2021 and Mat Suit No. 114 of 2022 were directed to be tried analogously. The application of the opposite party under Section 26 of the Hindu Marriage Act, 1955 was allowed on 3^rd February, 2024 by the learned Trial Court directing that the custody of the minor child, who is presently residing with the father, shall continue with the father till she attains majority.

3. Being aggrieved by and dissatisfied with the impugned order, the petitioner has preferred the revisional application.

4. Mr. Joyjit Choudhury, learned advocate for the petitioner submitted that during the pendency of the application for custody of the minor child, the daughter expressed her willingness to spend few days with her father which was acceded by the petitioner voluntarily and accordingly, the daughter of the petitioner went to her father’s house at Babupara on 23^rd January, 2023. On a wrong submission made by learned advocate for the opposite party, an order was passed on 7^th January, 2023 that the daughter Miss. Beshakha Chaki will continue to reside with the opposite party-husband. During her stay with her father, the daughter has been tutored by the opposite party for the purpose of getting her custody. Learned Trial Court failed to appreciate and consider that the custody of the daughter has previously been with the mother and taking advantage of the temporary stay, the opposite party has manipulated and tutored the minor daughter against the petitioner which is not a good parenting and the opposite party had also minimized the interaction of the petitioner with the minor daughter. This Hon’ble Court appointed a Special Officer in C.O. 82 of 2023 in which challenge was made to order dated 11^th April, 2023 and the visitation of the mother was permitted in presence of a Special Officer appointed by the Court. However, at the time of final disposal of the application, no such report of the Special Officer was taken into consideration by the learned Trial Court. The learned Trial Court examined the child before passing such order. The Evidence Act though does not prescribe any particular age for a witness to be a competent one, yet it is incumbent upon a Court, prior to examining a child witness, to assess the competency of the child witness to testify. This precaution is necessary because child witnesses are amenable to tutoring and pliable and liable to be influenced easily, shaped and moulded. In the present context, no such precaution was taken by the learned Trial Court prior to examining the child. Therefore, what has been stated by the child before the Court cannot be taken as sacrosanct to act upon. In support of his contention, he relied on the following decisions:

i. S. Amutha versus C. Manivanna Bhupathy,  2007 (2) CTC 97

ii. Nivrutti Pandurang Kokate and Others versus State of Maharashtra,  (2008) 12 SCC 565

He further indicated that the Court while granting custody of the child failed to give any visitation right to the mother. Normally, if the parents are living in the same town or are