matters. A child of such tender age has to be handled in a manner
where the child finds a friend in the Judge. First of all the
consultation with the child should be done in a language which the
child understands. Secondly, the child should never be called to
the Court room but only to the chamber. Thirdly, the Judge must
make an effort to build up a relationship with the child where the
child starts trusting the Judge. It is the duty of the presiding officer
to find out the truth from the child. Unfortunately, neither the
learned Magistrate nor the learned Sessions Judge tried to do this.
THE HIGH COURT OF TRIPURA
AGARTALA
Crl. Petn. No.09 of 2015
Smt. Sreeparna Banik (Saha) Vs Sri Ankur Saha,
BEFORE
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA
Citation: AIR 2016 (NOC)541 TRI
By this petition the petitioner has challenged the order
dated 17th March, 2015 passed by the learned Sessions Judge,
West Tripura, Agartala.
2. Briefly stated the facts of the case are that the
petitioner (hereinafter referred to as the ‘mother’) was married to
the respondent No.1 (hereinafter referred to as the ‘father’) on
27.02.2009. Differences arose between husband and wife. In this
case, this Court is only dealing with the issue as to who should be
granted the custody of the child and therefore, I am not going into
the allegations made by the husband and wife against each other.
There is no dispute that in the month of August, 2013, the mother
left the matrimonial home along with her child. It is disputed
whether the mother left over own accord or whether she was
forced and compelled to leave the matrimonial home. This matter
is not being decided here. A few days later, the mother of the
respondent i.e. grandmother of the child took the child back to the
father’s home. Thereafter, a notice was issued on behalf of the
wife to the husband on 19.08.2014 leveling charges and seeking
custody of the child.
3. Thereafter, the mother filed a petition under the
provisions of the Protection of Women from Domestic Violence Act,
2005 (hereinafter referred to as the Act) in December, 2014. Many
reliefs were claimed by the wife but in this petition we are only
concerned with the application filed by the wife under Sections 12,
21 and 23 of the Act praying that she may be granted custody of
her minor daughter. The learned Magistrate to whom the case was
transferred passed an ex-parte order directing the husband to
handover the child to the wife and also by interim order directed
that till the case is decided the custody of the minor daughter will
remain with the mother.
4. The main reason which weighed with the learned
Magistrate while passing the order was that a child of such tender
age needs the love, care and affection of her parents especially the
mother. The learned Magistrate found that the female child is only
4 years old and, therefore, requires the care and nourishment of
the mother. Even from the facts which were alleged in the
complaint it was apparent that the child had been living with the
father for more than one year and four months prior to the date of
the order being passed. On 16.8.2014 a notice had been sent by
the wife-petitioner to the husband in which the wife had
complained that the child had been taken away from her on
15.8.2013. Thereafter in response to this notice the husband sent
a reply in which it was mentioned that for 33 days the child had
remained with the mother on various dates.
5. In the reply to the notice, it was also stated as
follows:-
“5. Regarding the question of restoring custody, my
client states that welfare of the minor child is of paramount
consideration. In the demand notice, no where it is
mentioned as to how the welfare of the child will be
benefitted in the custody of the notice giver. The notice
giver, has not given any details regarding her monthly
earning or as to how she proposes to maintain the
expenses of schooling, fooding, studies and other expenses
of the child which are essentials for the welfare of a minor
child.”
6. The learned Magistrate was absolutely right in coming
to the conclusion that a child needs the love and affection of both
the parents. Parents who are adults may fight with each other.
Parents have their egos and because of their egos they do not
want to compromise with each other. The parents may do anything
to each other but the child has the right and in fact, the
requirement of every child is that if both parents are alive the child
should receive the love and affection of both the parents.
7. I am also of the considered view that a female child of
the age of three or four years should normally stay with the
mother. However, while passing orders with regard to transfer of
custody of children the Court must not only have a legalistic
approach but must also have a humane approach and should
understand human problems. In any case of custody of a child
paramount importance must be given to the interest of the child.
The child cannot be made a scapegoat due to the inability of the
parents to live with each other. Where the learned Magistrate went
wrong was to direct that the custody of the child be handed over
immediately to the mother that too by an ex-parte order. The
young girl who is the subject matter of this litigation, is a living
human being. She has emotions. She has her likes and her
dislikes. She is not an inanimate object like a pen or a pencil. She
is not an animal. Even an animal who lives with one human being
develops love and affection for that human being. The child had
been living with the father for more than one year. Only for a few
days the child had lived with the mother. The girl child is only 5
years old.
8. The husband filed an appeal challenging the said order
before the learned Sessions Judge, West Tripura, Agartala. The
learned Sessions Judge called the parents and found that the
minor girl had been in the exclusive custody of the father since
26.8.2013. He talked to the child and found that the child did not
want to go with the mother and in fact was not going near the
mother at all. He, therefore, held that it is not possible to order
restoration of the custody of the child to the mother. Further, the
learned Sessions Judge directed that the appellant i.e. the husband
will take necessary steps in consultation with the wife so that she
can visit her daughter twice in a month and the time and place to
be decided by the parties through their engaged counsel.
9. The learned Sessions Judge may have been right in
taking into consideration the views of the child but the learned
Sessions Judge was absolutely wrong in leaving it to the parents to
decide what are the visitation rights of the mother. It is for the
Court to lay down the visitation rights because the parties may
never come to an agreement with regard to the visitation rights
and that would lead to further chaos.
10. I myself had called the parties as well as the minor
child to my Chamber. I found that both the husband and wife had
taken very rigid stands and they were not willing to compromise
the matter under any circumstances. Both did not want to give in
even an inch to settle the matter. As far as the minor girl is
concerned, I found her to be an extremely intelligent girl. She
could converse with me confidently in ‘Hindi’ without the aid of any
interpreter. No doubt she said that she did not want to go with her
mother but when I questioned her in private in presence of the
Court staff she also admitted that she had been told by her father
and grandmother to state that she did not like the mother and did
not want to go with the mother. This clearly shows that she was
tutored. Where parents fight with each other these things are
bound to happen. If the child is in the custody of the mother the
mother will tutor the child and child will start hating the father. In
the present case the situation is just reverse. A child of 4/5 years
is totally under the influence of the father and family members of
the father with whom the child is residing. She will in Court say
only what she has been told to say at home.
11. Here comes the role of Judges who handle such
matters. A child of such tender age has to be handled in a manner
where the child finds a friend in the Judge. First of all the
consultation with the child should be done in a language which the
child understands. Secondly, the child should never be called to
the Court room but only to the chamber. Thirdly, the Judge must
make an effort to build up a relationship with the child where the
child starts trusting the Judge. It is the duty of the presiding officer
to find out the truth from the child. Unfortunately, neither the
learned Magistrate nor the learned Sessions Judge tried to do this.
12. When I had won over the confidence of the child in
chamber I found that not only she is very confident but she was a
very honest and truthful child. Any child by nature is honest. It is
society which turns a child dishonest by the time the child grows
up. Why should the child be denied the love of her mother? I have
already held that the child is not an inanimate being and the
Magistrate was wrong in transferring the custody of the child to
the mother all of a sudden. However, I at the stage of initial
hearing felt that first of all an attempt should be made to build up
a strong loving relationship between the child and the mother
where the mother gets love and affection of the child and the child
learns how to love and respect the mother. The father and the
family members were also clearly warned that if on the next
occasion when the child comes to Court I find that she states that
she hates her mother then I might think of taking away the
custody of the child from them immediately because if the child is
taught to hate the mother then the child is not being brought up in
a proper manner.
13. Even if the child is living with the father, the father and
the family members of the father should tell the child to love and
respect the mother. Just because the husband and wife are
fighting does not mean that the child should be taught to hate her
mother. A child who is taught to hate her mother can never turn
out to be a good human being. In any society the most important
trait of any person, be that person howsoever high or howsoever
low, is that the person should be a good human being.
14. The most important aspect is that the best interest of
the child has to be kept in mind while passing any order with
regard to custody, visitation rights etc. Legally speaking when the
child is a female and only 5 years of age the mother has the legal
right to get the custody of the child.
15. Keeping in view the aforesaid facts and circumstances,
on 24.06.2015, a detailed order was passed, the operative portion
of which reads as follows :
That w.e.f. 05.7.2015 the father shall take the child
to the house of the mother on every Sunday at 9.00
a.m. and bring back the child at 6.00 p.m. This will
go on for the entire month of July, 2015 till 2nd
August, 2015 and thereafter the child shall be
produced before me in my chamber on
5
th August, 2015 at 4.30 p.m. so that the child does
not miss school on that day.
16. On 27th July, 2015, this order was modified as follows:-
“That w.e.f 1st August, 2015 on every working
Saturday of the High Court the child shall be brought
to the High Court at 10.30 a.m. The child shall be
handed over to Ms. Sima Dutta the Private Secretary
to this Court who shall then take the child to the
auditorium. The mother shall meet the child in the
auditorium and the child will not be handed over
directly to her. At 1.00 p.m. Ms. Sima Dutta will ensure
that the child is handed over to the father. Ms. Sima
Dutta is also requested to introduce the child to
two/three other lady Officers of this Court and in case
Ms. Sima Dutta is on leave on any of the days one of
the other lady Officers shall see that the child is well
looked after. In case Saturday is not a working day
then on the Friday prior to the Saturday the child will
similarly be brought to the Court at 2.00 p.m. and
shall remain till 5.00 p.m. In case auditorium is not
available then the child will meet her mother in
alternative arrangement as may be found suitable by
the Court officials.”
17. Even today, the child is only about 5 years old. She is
a female child. It is in her interest to stay with the mother. Over
the period of last 2/3 months she has met her mother on a
number of occasions. It has been reported to me that though the
child was initially reluctant to meet the mother but after 10/15
minutes she gets involved with the mother and start playing with
the mother. It is more than apparent that even now she is being
tutored by her father and his family members to speak against the
mother. I have observed that she has become aggressive in her
behaivour. This is totally different to what her initial behaivour
was. The only presumption I can draw is that the father and his
family members are trying to tutor the child against the mother. I
had clearly mentioned in my earlier order that it is the duty of the
parent with whom the child is living to ensure that the child
respects and love the other parent also. This has unfortunately not
happened. A small female girl needs the attention of her mother.
The grandmother cannot provide the love and affection which a
mother can provide. On behalf of the father, it was contended that
the mother is not earning. It was stated on behalf of the mother
that though she was not earning when the petition was filed but
now she is working in a school. There is no manner of doubt that
the mother is a Post Graduate. She is an educated lady. The
husband is a rich businessman and it is his duty to maintain the
child and he can pay the expenses of the child even when she is
living with the mother. I am clearly of the view that now the time
has come to handover the custody of this 5 year old girl to the
mother. By now the child has become accustomed to her mother
and has been meeting her every week for more than two months.
18. Therefore, the petition is allowed and disposed of in
the following terms:-
(i) That the husband shall produce the child namely,
Miss Anushka Saha before the Registrar General of this
Court on 16th October, 2015 at 10.30 a.m.
(ii) the Registrar General with the help of Ms. Sima
Datta, the Private Secretary and Ms. Bappi Dey,
Superintendent to this Court shall handover the child
to the mother in the Court premises and the mother
shall remain in the Court premises till about 1 O’clock
and by that time, the Registrar General and the Court
official shall ensure that the child is comfortable with
the mother.
(iii) The father shall bring the clothes and other
essential items of the child to be handed over to the
mother. On and with effect from 1st October, 2015, the
father will pay maintenance of Rs.10,000/- (Rupees
Ten thousand) per month for use of the child to the
mother by remitting into her Bank Account directly.
The counsel for the mother is directed to submit the
Bank Account number of the mother to the
respondent-father within one week from today. The
remittance for every month be made on or before 5th
of every month.
(iv) The child shall stay with the mother for one
complete month without any visitation rights of the
father and thereafter, the matter will be taken up by
the Magistrate, who keeping in view the order passed
hereinabove, will grant visitation rights to the father to
meet the child at least once a week.
19. The parties are directed to appear before the
Magistrate on 17th November, 2015, when the Magistrate will deal
with the matter. In case, the husband has not complied with the
direction of this Court and has not paid the maintenance by that
date, the defence of the husband in the proceedings before the
Magistrate shall be struck off and he shall not be permitted to
contest the proceedings till he complies with the orders of this
Court.
CHIEF JUSTICE
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