Judgment

C.K. THAKKER, J.- Leave granted.

2. The present appeal is filed against the judgment and order passed by the Additional District and Sessions Judge, Fast Track, 1st Court, Barasat on 15-7-2006 and confirmed by the High Court of Calcutta in FMAT No. 3185 of 2006 on 7-12-2007. By the impugned orders, both the courts below directed handing over custody of a minor child, Antariksh Kundu to father, Abhijit Kundu, the respondent herein.

3. To understand the controversy in the appeal, it is appropriate if we narrate the relevant facts of the case:

The appellants herein, (i) Nil Ratan Kundu and (ii) Smt Kabita Kundu are maternal grandfather and grandmother respectively of minor Antariksh, father and mother of deceased Mithu Kundu and father-in-law and mother-in-law of Abhijit Kundu, the respondent herein. It is the case of the appellants that they had a daughter, named Mithu whom they gave in marriage to Abhijit Kundu on 8-8-1995. The marriage was performed according to Hindu rites and ceremonies. Sufficient amount of dowry, by way of money, ornaments and other articles, was given to the respondent.

4. According to the allegation of the appellants, however, the respondent and his mother were not satisfied with the dowry and they started torturing Mithu for bringing more money from the appellants. On 18- 11 - 1 999, a male child, Antariksh was born from the said wedlock. The appellants thought that after the birth of a son, torture on Mithu would be stopped. Unfortunately, however, it did not so happen. Mithu was totally neglected and the harassment continued. She became seriously sick. Coming to know about the ill health of Mithu, the appellants brought her to their house and got her admitted in a nursing home for medical treatment. On being cured, she returned to her matrimonial home, but the demand of dowry persisted and the physical and mental cruelty did not stop.

5. In the night of 9-4-2004, as alleged by the appellants, Mithu was brutally assaulted by the respondent and his mother and was brought to a hospital where she was declared dead. Immediately on the next day i.e. on 10-4-2004, Appellant 1 lodged first information report (FIR) against the respondent and his mother at Baranagar Police Station which was registered as Case No. 90 for offences punishable under Sections 498-A and 304 of the Penal Code, 1860 (IPC). The respondent was arrested by the police in that case.

6. On 18-4-2004, custody of Antariksh was handed over to the appellants. Antariksh was found in sick condition from the residence of the respondent. At that time, he was only of five years. It was his maternal grandfather, Appellant 1 who maintained the child with utmost love and affection. He was admitted to St. Xaviers Collegiate School, Kolkata which is a well-known and well-reputed school in the State of West Bengal.

7. After due investigation of the case, on 31-5-2005, the police submitted a charge-sheet against the respondent and his mother and the criminal case is pending. After the respondent was enlarged on bail, he filed an application under the Guardians and Wards Act, 1890 (hereinafter referred to as "the 1890 Act") praying for custody of Antariksh.

8. A reply was filed by the appellants to the said application strongly objecting to the prayer made by the respondent. It was expressly stated in the reply that custody of child Antariksh was given to them when he was found in ailing condition in the house of the respondent. The respondent and his mother had killed their daughter and a criminal case was pending and custody of Antariksh may not be given to the respondent father.

9. The trial court, after considering the evidence on record, allowed the application and held that the respondent was the father and natural guardian a of Antariksh and the present and future of Antariksh would be better secured in the custody of the respondent. Accordingly, it passed an order that custody of Antariksh be "immediately" given to the father.

High Courts order