Calcutta HC Grants Custody Of 4-Yr-Old Girl To Deceased Mother's Friend Over Biological Father, Grants Visitation Rights To Father

The Calcutta High Court has recently refused to grant custody of a four and a half years old girl child to her biological father and instead permitted the child to be in the care and protection of a family friend of her deceased mother.

However, the Court has granted visitation rights to the biological father after observing that the bond between the child and her natural father ought to be encouraged from a tender age.

A Bench comprising Justices Bivas Pattanayak and Joymalya Bagchi acknowledged that while the minor is well adjusted with the family friend, it is important to encourage the bonding of the minor with her biological father.

"It must also be borne in mind that a bond between the child and her natural father ought to be encouraged from tender age. Such bonding is not an assertion of right of the father but a step towards wholesome development of a minor vis-a-vis her natural parents", the Court observed.

Background

In the instant case, the mother of the minor had committed suicide on March 7, 2018, and thereafter the biological father of the minor had been arrested in connection with the criminal case registered over the suicide. Subsequently, the father had moved an application seeking custody of the minor who at that point of time had been in the custody of her maternal grandmother, Kajal Saha.

The trial court upon consideration of the facts and circumstances of the case, directed that the minor should continue to remain in the custody of her maternal grandmother until she attains 15 years of age and is in a position to make a conscious decision regarding her own custody. This order was subsequently appealed by the biological father vide the instant plea.

During the pendency of the appeal, the maternal grandmother also committed suicide. Under such circumstances, the minor was put in the care and custody of Julie Roy, a neighbor and a distant relation of the mother of the child.

Arguments

During the proceedings, it had been deposed on behalf of the family friend Julie Roy that in the absence of any responsible member in the immediate family, the minor had been put in her custody.

Furthermore, it had been further averred that Julie Roy has had a deep connection with the minor since her birth and that the child is comfortable in her care and custody. The Court was further informed that Julie Roy had also filed an application for guardianship of the minor before the District Judge, Howrah.

On the other hand, it was contended on behalf of the appellant/father that the custody of the child must be handed over to him since he is the biological father and is thus best suited to take care of the child under the present circumstances. Reliance was also placed on the Supreme Court decision in Tejaswini Gaud and Ors v. Shekhar Jagdish Prasad Tewari.

Observations

The Court noted at the outset that the neighbor Julie Roy had a day-to-day association with the growth and development of the child and thus it can be inferred that the child is accustomed to her company.

While the Court acknowledged that an immediate transfer of the custody of the minor to her father may be traumatic for the child, it was important to let the minor bond with her father for the sake of her overall development. Accordingly, the Court directed,

"In order to enable such a situation and ensure a balance development of the minor, we direct that the minor be handed over to the appellant at 9.00 a.m. on two consecutive Saturdays, i.e. 20th November, 2021 and 27th November, 2021 respectively from the residence of Julie Roy and the appellant shall hand back the minor to the said Julie Roy at her residence at 9.00 p.m. on those dates. The handing over and taking back of the child as aforesaid, shall be in the presence of the learned advocates-on-record of the appellant as well as the intervenor Julie Roy. It is expected that the parties shall act in terms of this order and the best interest of the child."

Furthermore, the Court vide order dated November 29, 2021 also directed a Child Welfare Officer to interact with the child exclusively in the absence of any of the parties. The Child Welfare Officer was further ordered to submit a report in this regard in a sealed envelope on the next date of hearing.

"This order shall immediately be communicated by the Secretary, Juvenile Justice Committee to the Child Welfare Officer of the District concerned for immediate implementation. Any inconvenience caused to the Child Welfare Officer by either of the parties shall be viewed seriously", the Court directed further. 

Advocate Srijib Chakraborty has represented the intervenor Julie Roy. 

Case Title: Tushar Kanti Das v. Kajal Saha

Click Here To Read/Download Nov 17 Order 

Click Here To Read/Download Nov 29 Order