Mausami Moitra Ganguli vs Jayanti Ganguli-HC 2008

Mausami Moitra Ganguli vs Jayanti Ganguli on 12 May, 2008

Facts of the case

  1. 1.
    Whether the father or the mother should have the custody of an almost ten year old male child is the short question which falls for consideration in this appeal.
  2. 2.
    The appellant-mother and respondent-father got married on 18th April, 1996.
  3. 3.
    On 28th May, 1998, a boy, namely, Master Satyajeet was born from the wedlock. However, within a short time, the relationship between the spouses came under strain
  4. 4.
    She was subjected to physical violence, due to which, on 16th August, 2001, she was forced to leave her matrimonial home at Allahabad, leaving the infant with the father.
  5. 5.
    On 5th April, 2003, the appellant moved a petition under Sections 10 and 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority andGuardianship Act, 1956 before the Family Court, Allahabad seeking a declaration in her favour to be the lawful guardian of her minor son, Satyajeet and a direction to the respondent to hand over the custody of the child to her.
  6. 6.
    Resisting her claim, it was alleged that having left him when he was less than three years of age, the appellant had no emotional bond with the child; after leaving Allahabad, she had not even talked to the minor child over the telephone or enquired about his welfare; being the natural guardian of the child he was capable of and was, in fact, looking after the welfare of the child; the child was studying in a prestigious school at Allahabad for which he was paying a fee of Rs.25,000/- per annum and had also nominated him in his insurance policy.
  7. 7.
    As regards his financial position, it was stated that he owns a house, telephone and a motor car whereas the appellant has no house of her own and is living with her mother and brother in a two-room flat at Calcutta.
  8. 8.
    The family Court observed that the appellant was a highly qualified teacher drawing a salary of Rs.22,000/- per month whereas the respondent was only a private contractor without regular source of income and though the child was studying in a prestigious school in Allahabad, there was lack of constant care and protection of the child in the house of the respondent.
  9. 9.
    Finding the testimony of the appellant and her two witnesses to be credible, the Family Court held that for the welfare of the child, the custody should be with the mother.
10.Being aggrieved, the respondent preferred Regular Appeal to the High Court. Vide order dated 28th February, 2007, the High Court has set aside the order of the Family Court and granted permanent custody of Satyajeet to the respondent.

Decision made by high court

the questions which were put to the child and answers thereto indicate that the child wants to study at Allahabad. Having regard to the prevalent circumstances and the fact that the child had received his education from primary stage with his father at Allahabad, the Court came to the conclusion that the welfare and development of the child and his future would be best served at present at Allahabad in the hands of the father. Accordingly, the High Court set aside the order passed by the Family Court and granted the custody of Master Satyajeet to the respondent.
During interview of the child by the High Court and this Court, the child has in very clear terms expressed the desire to stay with the father which shows that he is being looked after properly and is already studying in a good school at Allahabad. It was submitted that shifting of the child from Allahabad to Panipat in an absolutely new environment, all alone, with the mother, who had abandoned him when he was less than three years of age would not only adversely affect his studies, it will also affect him emotionally.
The dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would not only impede his schooling, it may also cause emotional strain and depression on him.
Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, The high court is convinced that child's interest and welfare will be best served if he continues to be in the custody of the father. In our opinion, for the present, it is not desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained. We feel that the visitation rights given to the appellant by the High Court,