Calcutta High Court Relies On Hand-Written Letter Of Child Alleging Negligence, Grants Custody To CWC

The Calcutta High Court last week reiterated that in matters of custody, welfare of child must be of utmost consideration. Accordingly, it upheld removal of a child from his mother's custody on the basis of the child's hand-written letter regarding neglect and ill-treatment.

Justice Shivakant Prasad opined that the welfare of a minor would triumph all other considerations by observing,

"Thus, it is well-settled law in the matter of custody of the child that the paramount consideration is the welfare of the child and not right of the parents."

He ordered that in the interest of child's welfare, Child Welfare Committee (CWC) Kolkata shall continue to keep the minor in their lawful custody. It however directed CWC to give visiting right to both the child's mother and father, on alternative days. 

Background:

In the instant case, the petitioner had alleged that the action taken by the CWC in removing the minor from the custody of his natural guardian was wholly unlawful and unwarranted. As a result, the petitioner prayed before the Court to issue an interlocutory order under Section 12 of the Guardians and Wards Act, 1890 to reinstate the temporary custody of the child with the petitioner. She submitted that consequent to the dissolution of her marriage, she had been granted custody of her minor son.

The West Bengal Legal Services Authority had on the other hand placed on record a hand-written complaint of the minor son of the petitioner, reported through her ex-husband. In the letter, the minor child had alleged that his mother was negligent towards him and also complained of ill-treatment.

The petitioner questioned the authenticity of the signature and handwriting on the aforementioned letter

Accordingly, the Court had personally interrogated the minor child consequent to which the child had intimated the Court about his unwillingness to return to the custody of his mother.

Observations:

At the outset, the Court opined that the CWC had taken over the custody of the concerned minor through lawful means by adhering to the procedure enumerated in Clause 9 of NALSA (Child Friendly Legal Services to Children and Their Protection) Scheme, 2015. Further, it was observed that such a measure was taken by the CWC pursuant to the directions of the Member Secretary of NALSA.

Refuting the contentions of the petitioner, the Court noted,

"Therefore, it cannot be said that the interim custody of the child being the son of the petitioner, Sagnic, was taken by respondent No. 2 or it's official in an illegal manner because it was on the basis of a written complaint by the son himself and I have ascertained the signature and his mind as well to prima facie find that the child is not willing to go with the mother."

Furthermore, the Court placed reliance on the Supreme Court judgment of Nilratan Kundu v. Avijit Kundu to rule that in the instant case the welfare of the child would be guaranteed if he continues to remain in the custody of the safe house allocated by the CWC.

Accordingly, the Court disposed of the petition by directing both parties i.e. the petitioner and her ex-husband, the father of the child, to deposit a sum of Rs. 20,000/- individually for the welfare of the child as he continues to be in the interim custody of the safe home. Further, the Court extended visitation rights to both the parents.

Case Title: Nilanjala Ghosal v. State of West Bengal

Click Here To Read/Download Order