Women are filing false 498A on Saturday to keep husband in custody on Sunday and deliberately avoiding child access to father – Calcutta HC
C.O. 2453 of 2012
Smt. Banani Acharya (Sarkar)
Sri Bikash Sarkar
Mr. S. Mukherjee,
Mr. Susanta Kumar Pal,
……. For the petitioner.
Supplementary affidavit filed by the petitioner be kept with the record. The present application is arising out of an order passed by the learned Additional District Judge in an application for custody of a male child. The learned trial Judge directed the wife to hand over the custody of the child forthwith to the husband and the husband was also directed to produce the child before the Court on first and third Saturday of each month from 11.00 A.M. to 12.30 P.M. when the wife was directed to visit the minor child during such period.
The wife being aggrieved by the said order filed this revisional application. The child is only about 4 years old and has become the pawn in the hands of the parents. In the tug-of-war the helpless child is in quandary with whom he 2
should spend his childhood and his innocent eyes show that he requires both the parents.
The custody proceeding commenced with the filing of the application by the wife under Section 38 of the Special Marriage Act, 1954 on 11th January, 2012 in which the wife prayed for a direction upon the husband to return the minor child and give custody to the wife. Initially, on 9th April, 2012, the learned Civil Judge directed the husband to send the child on each Friday in the afternoon to the house of the wife/petitioner and the petitioner was directed to return the child to the custody of the husband on Sunday evening on each week and such arrangement was to continue until further orders.
The wife in the said proceeding, thereafter, filed an application for modification of the order upon proof of change of circumstances. The change of circumstances alleged in the said petition was that since the passing of the order dated 9th April, 2012, the husband on his own whims violated and disrespected the order dated 9th April, 2012 and never sent the said minor male child to the house of the petitioner with the dishonest intention to torture the petitioner mentally and thus committed offences which are punishable under the Contempt of Courts Act, 1971. On 16th May, 2012, the petitioner got information from one of her well-wisher that on 10th May, 2012 a street dog bite her minor child and the said child was in acute distress. 3
Following receipt of such information, the petitioner on 16th May, 2012 visited the matrimonial home when she found that the said child was lying in an unconscious condition with high fever and with the help of the well-wishers and inhabitants of the locality, she rescued her minor son and, thereafter, arranged for necessary medical treatment. Gradually, the son recovered and the said male child is under the supervision of the medical practitioner who alleged to have suggested in his prescription dated 20th June, 2012 that the child requires bed rest for seven days. The wife relied upon the Photostat copy of the patient cards issued by the Department of Health & Family Welfare, Govt. of West Bengal in the name of the minor child between 10th May, 2012 and 20th June, 2012 regarding treatment. On 10th June, 2012 at about 6.00 p.m., the respondent husband along with some miscreants alleged to have trespassed into the house of the petitioner and demanded dowry of Rs.1,00,000/- and threatened the petitioner with dire consequences, in the event, such amount is not paid by the petitioner. It was alleged that the said petitioner along with miscreants forcibly wanted to take away the child who was under treatment but due to the resistance of the petitioner and inhabitants of the locality they could not succeed and left the place with the threat of repeating such offensive acts in future. Subsequently, on 19th June, 2012 similar attempts were made but they were not successful. In short, the custody of the child to the father was sought to be resisted, inter alia, on the following grounds:-
i. The opposite party/husband has criminal records;
ii. She is well placed in life so as to take care of the minor. iii. The family environment would be conducive of a balanced up bringing of the minor.
iv. The minor is likely to receive adequate education, medical treatment and cultural training having regard to his socio-economic position in society.
v. The minor is expected to have a reasonably good start in life at the end of his minority.
It was on the aforesaid basis the wife claimed permanent custody of the child. The said matter was contested by the husband. It appears that the husband contended before the trial Judge that in terms of the direction for custody passed on 9th April, 2012, the child was handed over to the mother but the mother refused to hand over the child after 2nd June, 2012 and since 2nd June, 2012 the minor is in the custody of the petitioner/wife. The wife also did not permit the husband to see and take back the minor child to his place in terms of order dated 9th April, 2012. It was also submitted that the said child is studying in a school which is adjacent to the house of the husband and the school would reopen after summer vacation and soon after the reopening of the school on 26th June, 2012, the examination would start. In view thereof, it is important that the child should be handed over to the father. It appears that both the parties have lodged general diary with the respective Police Station alleging violation of the order passed by the trial Judge. The respondent/husband also appears to have filed a petition on 2nd June, 2012 5
praying for a direction upon the wife to hand over the custody of the child. On careful consideration of the record, the trial Judge before arriving at the conclusion observed that the custody of the minor was with the father and for which the mother prayed for custody of the child by filing the said petition along with a prayer for divorce and after hearing the parties, initially, an order was passed on 9th April, 2012 by way of an interim arrangement. On the basis of the materials on record the learned Civil Judge arrived at a finding that the wife claimed to have taken custody of the child only on 16th May, 2012 after getting the information that the child was suffering from fever and lying in distress condition. The medical examination record shows that the child was treated in the Naihati State General Hospital on 10th May, 2012 and 15th May, 2012 and on 4th June, 2012 was fixed for further medical examination. Accordingly, it cannot be said that the child was not treated by the father. In fact, when the child was sick he was under the custody of the father and the child was treated on 10th May, 2012 and 15th May, 2012 at the Naihati State General Hospital. The child was further treated on 8th June, 2012, 11th June, 2012 and 20th June, 2012 respectively when the child was under the custody of the mother. The mother did not complain that the child was not handed over to her till 16th May, 2012 alleging refusal by father to hand over the child and even no application alleging violation of the order dated 9th April, 2012 was moved on 30th May, 2012 when the suit was fixed for hearing. On 9th June, 2012 during the hearing of the matter, the learned Civil Judge passed an order in which an 6
observation was made by the Court that the male child used to reside with his father and after enquiring from the child by the Court it was found that the child was not willing to go with his mother. The Court also recorded the difficulties being created by the petitioner in effecting service on her of the petitions filed by the husband. The learned Civil Judge, on the basis of the earlier recordings and materials on record considered the interim custody of the child keeping in mind that the welfare of the child should be the paramount consideration. It is very unfortunate that a child only of 4 years had to suffer such mental trauma only because of the fights between his parents. In allowing the said application for interim custody in favour of the father, the proximity of the school, the reluctance of the child to go along with his mother, the immediate treatment of the child by the father during his stay with his father and refusal of mother to hand over the child to the father in compliance of the order dated April 9, 2012 were taken into consideration and, accordingly, the wife was directed to hand over the custody of the child forthwith to the husband with certain visitation rights and, accordingly, the trial Judge fixed on 7th July,2012 for production of the child. Thereafter what happens really shocks the judicial conscience and brings out certain disturbing features as to how the orders of the Civil Court have been attempted to be nullified or rendered otiose. Such facts are revealed from a supplementary affidavit affirmed by the wife on 17th July, 2012 after the petitioner was successful in persuading one of the learned single Judges to release the matter on grounds which are admonishable, to put it mildly. In fact, it appears that the present petition was initially heard by Justice Prasenjit Mandal. After some 7
extensive hearing it was submitted on behalf of the petitioner that the petitioner had lost confidence in the Court and in view of such submission, the matter was released by His Lordship. It is extremely unfortunate that such submission was made before His Lordship without disclosing the reason for losing confidence of the Court.
In the supplementary affidavit, the wife stated that on 22nd June, 2012 the wife lodged a complaint against the husband in the Barasat Police Station for committing offences under Sections 498A/406/448/506/120B of the Indian Penal Code, 1860 which was registered as Barasat P.S. Case No.1292 dated 22nd June, 2012 which resulted in an arrest of the opposite party/husband on 14th July, 2012 from the residence of the opposite party and it is contended that on production of the husband on 15th July, 2012, the learned Chief Judicial Magistrate at Barasat rejected his bail application and remanded him to jail custody till 27th July, 2012. It is significant to mention that on 13th July, 2012 the learned Advocate for the petitioner was successful in releasing the matter from the learned single Judge and on the very next date the husband was arrested by the police. In the application before the Civil Court, the wife alleged that she was driven out of the matrimonial home on 25th March, 2008 and in July, 2010 the husband on the pretext of keeping the son with whom for a day or two took the son from her custody but did not return which had resulted in an application filed under Section 38 of the Special Marriage Act, 1954 in which an order was passed on 9th April, 2012.
It is a fact that the wife did not return the child nor produce the child on 7th July, 2012 as directed by the impugned order. In order to render the order passed by the Civil Judge on 4th July, 2012 ineffective and inimplementable recourse was taken to such proceedings with an ulterior motive. The police arrested the husband on the basis of an application filed on June 22, 2012 under Section 156(3) of the Code of Criminal Procedure, 1973. The basis of the said petition is a general diary lodged on June 16, 2012. The police arrested the husband on 14th July, 2012 and produced him on 15th July, 2012. The said production resulted in a routine order of remand being passed by the learned Chief Judicial Magistrate at Barasat, North 24-Parganas on 15th July, 2012. This Court in great anxiety observed that in most of such cases police arrests the so- called accused on the basis of such complaints mostly on Saturdays so that they are produced on Sundays before a Court which are practically non-functional resulting in routine orders of remand. This a clear infringement of fundamental rights of a citizen and it shakes the basic fabric of administration of justice. The police have an important role to play. It is unfortunate that in many cases such arrests are made on the basis of false complaint and usually such arrests are made on Saturday in order to ensure custody on Sunday since routine orders of remand are ordinarily passed at times even without requiring the police to produce the case dairy. In most of the cases, case diaries are not produced and the Investigating Officer is let off without any stricture or punitive orders. If a case is registered on 22nd June, 2012 this Court is unable to appreciate as to 9
why the said husband/opposite party was arrested on 14th July, 2012. The reasons are obvious. It calls for an investigation. The wife did not disclose the proceeding initiated under Section 156(3) of the Criminal Procedure Code. before the Civil Court. However, since the Chief Judicial Magistrate is in seisin over the matter it is expected that he should conduct a proper enquiry into the matter and must be very cautious in future in dealing with such matters arising out of matrimonial disputes especially when it involves custody matters since it has become the regular feature that matrimonial disputes are initiated in Criminal Courts by taking recourse to proceedings under Section 498A of the Indian Penal Code, 1860. The Courts are required to be extremely cautious and circumspect in passing an order in an application filed under Section 156(3) Criminal Procedure Code and in dealing with bail application. The advice given to the wife to initiate such proceeding in order to frustrate the order of Civil Court would be disastrous for the wife once the Court comes to a finding that such proceedings are mala fide, vexatious and an abuse of the process of law and such advisor cannot escape his or her liability and responsibility. Such irresponsible and improper acts are deprecated.
The date of filing of the petition under Section 156(3) Criminal Procedure Code the date of arrest of the husband and the subsequent order of remand give a clear impression that such process was initiated with an ulterior motive to render the order of the Civil Judge ineffective.
The learned Counsel on behalf of the petitioner refers to two decisions reported in AIR 1992 Madras 272 (Mrs. Umamaheswari v. V.Sekar) and AIR 1990 SC 1156 (Manju Tiwari v. Rajendra Tiwari) for the proposition that the mother should be given the custody of a child less than 5 years of age with liberty to the father to visit the father during the weekends.
In determining the question relating to the custody of a child, the paramount consideration should be the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts.
In Ashish Ranjan v. Anupma Tandon & Ors. reported in 2010 (14) SCC 274 after considering the earlier decisions on this point the Hon’ble Supreme Court held:-
“18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the “moral and ethical welfare of the child must also weigh with the court as 11
well as his physical well-being”. The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution, with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.”
In Mohan Kumar Rayana V. Komal Mohan Rayana reported in 2010 (5) SCC 657 while considering the custody of a minor under the Hindu Minority and Guardianship Act, 1956, the Hon’ble Supreme Court observed that wishes of the minor need to be given due weightage. In that case, the order of the family court directing custody of child to continue with the mother was upheld on the basis of the wishes expressed by the minor. In Anjali Kapoor v. Rajiv Baijal reported in 2009 (7) SCC 322, the Hon’ble Supreme Court while considering Section 17 of the Guardians and Wards Act, 1890 held that when a conflict arises between the rights of natural guardians vis-à-vis welfare of the child what would best serve welfare and interest of the child should be the sole and predominant criteria. The Children are not mere chattels as observed in Rossy Jacob v. Jacob A. Chakramakkal reported in 1973 (1) SCC 840. The Hon’ble Supreme Court in Anjali Kapoor (supra) quoted with approval observations of the English Court and the other foreign Courts in deciding such custody matters giving predominance to the welfare of the child as it appears from Paragraphs 19 to 21 which are reproduced hereinbelow:-
“19. In McGrath (infants), Re 1893 (1) Ch 143 it was observed that: “… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”
20. In American Jurisprudence, 2nd Edn., Vo.39, it is stated that: “…An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment.”
21. In Walker v. Walker & Harrison (1981 New Ze Recent Law 257) the New Zealand Court (cited by British Law Commission, Working Paper No.96) stated that: “Welfare is an all-encompassing word. It includes material welfare; both in the sense of adequach of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.”
The learned Civil Judge, in my mind, upon taking into consideration the aforesaid factors and the wishes of the child restored the custody of the child in favour of the father by way of an interim arrangement. Such custody orders are 13
always interlocutory in nature which can be varied and/or changed with the change of circumstances.
On the basis of the order of remand it is sought to be argued that in view of such changed circumstances the order of trial judge is to be reviewed and the child should be allowed to remain with the mother. The said submission cannot be accepted. This Court before passing this order has enquired from child his wishes. The impression of this Court is that the child wants to see the father and be with the father although he was brought to the Court by the mother. The child was in a complete helpless condition. It is unfortunate that the said beautiful child has been dragged unnecessarily in this unfortunate litigation. If the mother is really fond of her child and want her child to have a proper and better living, she should not have initiated such criminal proceeding against the husband and make an attempt to render the order of the Civil Judge nugatory. In the absence of any materials on record as to whether the Chief Judicial Magistrate at Barasat was informed of the said custody matter and the orders passed by the Civil Judge, it would not be proper for this Court to make any remark on the order passed by the Chief Judicial Magistrate in entertaining the application filed under Section 156(3) Criminal Procedure Code or in passing an order of remand. However, the Chief Judicial Magistrate at Barasat is directed to immediately call for the record and consider the prayer for bail of the petitioner forthwith upon receipt of this order and to pass appropriate orders. If the said Chief Judicial Magistrate found that the said complaint is malicious, vexatious, 14
mala fide and filed with an ulterior motive, the learned Magistrate should dismiss such complain. Furthermore, if it appears to the learned Magistrate that the Investigating Officer has acted improperly or on the basis of insufficient materials, appropriate order should be passed against the Investigating officer. The learned Civil Judge should also pass appropriate orders taking into considerations the order passed by the Chief Judicial Magistrate and to ensure that the welfare of the child does not suffer in any manner whatsoever. The Civil Judge should decide the custody of the child till the husband is released on bail. Meanwhile as an interim measure the wife/petitioner must ensure that while in her custody, the welfare and the benefit of the minor is not compromised. This is the primary consideration for not disturbing the present custody of the child and subject to the order that may be passed by the Civil Judge.
A copy of this Order be immediately forwarded by the learned Registrar General, High Court, Calcutta to the learned District Judge, Barasat, the learned 5th Additional District Judge at Barasat, learned Chief Judicial Magistrate at Barasat, North 24-Parganas and the Director General of Police for compliance and necessary action.
Since this revisional application is dismissed no notice is required to be sent upon the opposite party/husband. However, the learned Registrar General is directed to effect service of this order on the husband/opposite party. Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the petitioner in compliance of necessary formalities. (SOUMEN SEN, J.)