#choose proper amarnath

[seemabhatnagar]

Child become scapegoat in Parent’s fight

Shri Rakesh Chandra Saha & 2 others v. Smt. Puja Dey Saha

Crl. Misc. Case 22/2023 Before High Court of Tripura at Agartala

Disposed of By High Court of Tripura at Agartala on 12.10.2023

By the Bench of Hon'ble Mr. Justice T. Amarnath Goud

Facts:

Petitioner/ Rakesh Chandra Saha and Respondent/ Smt. Puja Dey Saha married on 09.08.2015 and a daughter Padmakshi was born on 23.10.2017Both the husband and wife stayed in Udaipur-Tripura.

Respondent, on 27.05.2022 without intimating anything to anybody, left the matrimonial house at about 8.30 P.M leaving behind sleeping minor daughter, aged about 4 and half years.

When petitioners came to know he searched to all known places and without finding her approached police Station and lodged missing complaint on 27.05.2022.

Missing News was also got published in all leading Newspaper of Tripura.

On 06.06.2022 Respondent was recovered & at police station informed the petitioner that she neither wanted to go with him nor with her parents & made a declaration before the Officer In charge of R. K. Pur Police Station that she had left the house voluntarily and she does not want to go back with the petitioners and will never ask for the custody of the minor.

She left the PS with another person informing police that she will divorce the petitioner by mutual consent.

On 23-09-2022, the respondent filed a case against the petitioners under Domestic Violence Act, claiming temporary custody of the minor daughter.

Judicial Magistrate First Class (JMFC)passed exparte allowed her custody petition on 27.09.2022.

When petitioner came to know of the order, he appeared before the court on 29.09.2022 & submitted his detailed objection narrating the whole sequence of events.

The JMFC heard the matter and recalled its interim custody order to the Respondent on 30.09.2022 and instead asked her to seek visitation right.

Aggrieved with the order dt. 30.09.2022 Respondent filed Appeal & Appellate Court allowed the Appeal on 01.09.2023 setting aside the order dt 30.09.2022.

Accordingly temporary custody and visitation right on every alternate day from Monday to Saturday between 8 AM to 8 PM was granted.

Aggrieved with the order of the Appellate Court, Petitioner – Rakesh Chandra filed Criminal Petition before the High Court.

Submission of the Counsel of the Petitioner

The order dt. 01.09.2023 was passed without considering Detailed objection of the father.

Appellate Court considered the welfare of the child but failed to explain as to how welfare of the child would be preserved by an unemployed mother more so a mother who had left the 4-year-old sleeping child at night.

Liberty was given to the Respondent vide the order of the JMFC dt. 30.09. to seek the visitation right with proper leave of the court but she chooses to Appeal & demanding custody is only crocodile tears.

The minor daughter is studying in an English medium school namely Brilliant Star School in KG-II standard class and is taken care of by the petitioners and her every expense is also borne by the petitioners.

Giving custody to the unemployed respondent would result in an unhealthy lifestyle of the minor child.

Submission of the Counsel of the Respondent

The Court below also failed to consider that the petitioner is guilty of causing disobedience ard of the order dated 27.09.2022 as such petitioners are not entitled to get custody of minor daughter.

The child is a female and mother is the best caregiver in case of female child who would be deprived of love & affection of her mother.

Order dated 30.09.2022 has been rightly passed after taking into consideration all the materials on record

Observation of the Court

Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents.

The eventful agreement about custody may often be a reflection of the parents’ interests, rather than the child’s.

This Court is aware of the fact that when two parents are at war with each other it is impossible to provide a completely peaceful environment to the child.

The court has to decide what is in the best interest of the child after weighing all the pros and cons of both the respective parents who claim custody of the child.

Obviously, any such order of custody cannot give a perfect environment to the child because that perfect environment would only be available if both the parents put the interest of the child above their own differences.

Even if parents separate, they may reach an arrangement where the child can live in an environment which is reasonably conducive to her/his development.

It is very surprising to believe the version of the mother that on one hand she says that she is having more concerned towards the welfare of the child and trying to keep away the child from the father and on the other hand and she is willing to continue the sharing of the child custody.

Overnight custody must be encouraged wherever possible and mere meeting and spending time with the parent for couple of hours in court premises, hotel, theatre, Mall, park etc., under the supervision of other parent or relative will not serve any purpose of visitation as the child will be under psychological pressure and will not be comfortable.

No parents can be a guest in the life of the child. It is not just and proper to allow the parents in the time of visitation for couple of hours to see the child in an alone place as a guest visitor.

Their matrimonial and other cases are pending in the concerned Courts and both the mother and father are making allegation and counter allegation against each other and this Court is not inclined to enter into the said controversy since, that is not the subject matter before this Court.

Order of the Court

Thus, the custody of the child should be with both the parents and accordingly,

Monday, Thursday and Friday will be with the father since the child is attending the school including night stay

Saturday after school and Sunday, the custody will be with the mother since the mother is staying at Agartala at her parental home. Mother will pick up the child and drop at residence of the petitioner without affecting the school timings

On all holidays they share their times equally and on vacation also to be shared equally by both the parents

On birthday of the child, morning to evening 4.00 O’clock the child will be with one parent and after 4.00 O’clock the child will celebrate her birthday with the other parent. In the event, if both the parents wish to celebrate birthday of the child together at a time and at a place as per her wish, they are at liberty to do so.

The father shall bear the education and medical expenses of the child and shall take care.

The present criminal petition was disposed of and the order(s) passed by the learned Court below is modified as indicated above.

Seema Bhatnagar

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