IMPORTANT POINT
In custody matters welfare of child is paramount.

Harish Tandon, J.—This is an unfortunate litigation between warring parents for custody of the minor son even after the divorce by mutual consent. The father of the child initiated a proceeding under Section 25 of the Guardians and Wards Act for custody of the child, which is admittedly with the mother for his betterment and welfare. The proceeding faced several round of litigation before the Trial Court as well as this Court and a contempt proceeding for violation of this order passed by this Court in an earlier revisional application is pending.

2. Shorn of unnecessary details the petitioner is renowned musician and acclaimed such recognition in the society as sitar player. The father of the petitioner was also an amateur sitar player and learnt such skill under the tutelage of two legendary maestros namely Pandit Nikhil Banerjee and Ustad Ali Akbar Khan. The mother of the petitioner was also an artist of All India Radio and performed in Doordarshan on many occasions. The parties hereto, met in a concert and developed love and affection for each other and ultimately married under the Special Marriage Act, 1954 on 12th June, 2002. In the said wedlock a male child was born on 26th June, 2009, who is named Pratham Chatterjee and is currently seven years of age.

3. Subsequenly, the differences in such relationship cropped up and both the parties decided to live separately and ultimately agreed to dissolve the marriage by mutual consent and approached the District Judge, Barasat by filing Matrimonial Suit No. 1843 of 2012. The said suit was subsequently decreed on June 10, 2013 on the basis of their such consensus. It was averred in the said matrimonial suit that the petitioner would pay a sum of Rs. 30 lakhs towards the lump sum as one time payment of alimony and cost of bringing up the minor son apart from a flat in Eastern High Apartment, Rajarhat, New Town with its existing furniture and fixtures together with the covered car parking space to be gifted to the opposite party for her comfort living. The statements made in paragraphs 14 and 15 of the said application for mutual divorce are the center of disputes in the present litigation wherein it was agreed that the minor son would remain in the care and custody of the opposite party till he attains majority and the petitioner will have a visitation right and right to take the child on holidays and vacations. The opposite party shall consult the petitioner with regard to all major issues relating to the minor child’s education, health care and extra curricular activities so that the welfare of the child, which is paramount, is taken care of.

4. The application under Section 25 of the Guardians and Wards Act came to be filed by the petitioner alleging that the opposite party is neglecting the minor son and is not properly taking care of. It is alleged that she frequently changed her job and leads a life of a bohemian roaming here and there in the suspicious manner and did not spare any time with the minor child. The child used to spend weekend not only with the petitioner but his grand parents and showed his indifferent attitude when handed over to the opposite party in the evening of Sundays. The son was admitted into a heritage school and because of the ill treatment and behaviour of the opposite party his performance in the school deteriorated and both the parties were called by the teacher, who pointed out that though he has a creative mind and potential but he is not performing well and therefore to be handled with sensitivity. It is further alleged that though the said some of Rs. 30 lakhs was given to the opposite party for the upbringing of the child yet she withdrew substantial amount for her use despite fact that the other expenditures including education fees are paid by the petitioner. The opposite party is attempting to remove the minor son from the jurisdiction of the Court and have not been allowed to study in the heritage school and the opposite party is co