ANAMITRA DUTTA GUPTA Vs. SOUMEY DUTTA GUPTA

JUDGEMENT

(1.) The very sensitive issue as to whether a natural mother should be allowed custody of a minor female child aged about 6 years at present for two days in a week, while the parents are fighting litigation amongst themselves, is the subject matter of this revisional application.

(2.) The matrimonial background of the parents of the child is not too long and seems to have estranged 10 years after the marriage while the only female child born out of the wedlock was about 5 years old. The wife/petitioner alleging both physical and mental torture by her husband and his parents lodged a complaint on 5-2-99 with the concerned Police Station u/S. 498A/406/34 of the Indian Penal Code against her husband and inlaws. On the basis of the said complaint a police case was instituted. It also appears from the records that the husband/opposite party at the same time filed a suit for restitution of conjugal rights against his wife. It is an admitted position that the aforesaid minor child is in the keeping of her father at present. The mother of the child alleged that she was compelled to leave the matrimonial home without her daughter because of physical and mental tortures perpetrated by her husband and inlaws. Accordingly, the wife filed an application under Section 97 of the Code of Criminal Procedure, 1973 for issuance of a search warrant and for recovery of her minor daughter from the custody of her husband, before the learned Sub-Divisional Judicial Magistrate. The said application did not succeed. The wife/petitioner moved a criminal revisional application before this Court challenging the order of dismissal of her petition under Section 97 of the Code of Criminal Procedure by the learned Magistrate. Almost at the same time the husband/opposite party filed an application under Section 7 of the Guardian and Wards Act, 1890 before the learned District Judge, Barasat which was registered as Act VIII Case No. 114 of 1999.

(3.) In the aforesaid Act VIII case father/opposite party filed an application under Section 12 of the Guardian and Wards Act, 1890 for an inter-locutory order restraining the wife/petitioner from disturbing his custody of the child pending disposal of the petition under Section 7 of the said Act. The wife/petitioner opposed the said petition under Section 12 of the said Act filed by the father/opposite party and also made a counter-claim under Section 12 of the said Act for an interlocutory order for custody of her child from Friday afternoon till the morning of next Monday in every week. It appears that the above criminal revisional application by the wife being C.R.R. No. 49/2000 was disposed of by a learned single Judge of this Court on 4-2-2000. The learned Judge did not interfere with the order passed by the learned Magistrate dismissing the mother's petition under Section 97 of the Criminal Procedure Code but observed that the mother's affection for her child cannot be ignored and on humanitarian grounds she can meet her child and at the suggestion of the parties made an order that the mother will meet her child at the residence of one Sri Manik Goswami a common relation of both the spouse on every Thursday from 9 a.m. to 6 p.m. Since the aforesaid petition under Sections 7 and 12 of the Guardian and Wards Act, 1890 as above were pending before the learned District Judge, Barasat so the learned Judge of this Court in disposing of the aforesaid criminal case specifically directed that such arrangement of meeting of the child by the mother in the residence of Mr. Manik Goswami will continue till the matter is decided by the competent Civil Court.