UMA TALAPATRA Vs. MANABENDRA TALAPATRA

JUDGEMENT

(1.) The present revisional application is directed against order Nos. 29 & 30 dated 2-9-94 passed by the learned Judge, 10th Bench, City Civil Court, Calcutta in Matrimonial Suit No. 101 of 1993. By the impugned order a petition under Sec. 38 of the Special Marriage Act for custody was disposed of. The present proceeding has a chequered career There appears to be an irreconcilable difference between the parties to this marriage which embittered the relationship between the parties resulting in protracting litigation. The same was preceded by initiation of a spate of criminal proceeding initiated by the wife against the husband, and the husband has been attempted to be roped on a number of offences punishable under the Indian Penal Code. The same having been withdrawn it was followed up by filing defamation proceeding at the instance of the husband and attitude of the respective parties is to punish each other. In the back-drop of the same out of the said marriage a female child was born some time on 19th June, 1985. This Court while proceeding further in the matter has noted that at this juncture the child has become the central figure of the controversy. This Court in this case is concerned with human problem affecting the future of a little child. This Court is further made to exercise its introspection that a person is made to be born without his or her consent and such person is made to bear the cross of hazard of the pangs of life when the child is not a consenting party. The acts of recrimination of the partners of life seem to be found being visited in the conspectus of the scenario of the life of growing child. The task of this Court is indeed and undoubtedly difficult and delicate. The case being short of details, the allegation is from the side of the mother that she was driven away from the marital home on 4th June, 1992 and subsequently a First Information Report was lodged. On the basis of the said First Information Report the husband as well as his relations were arrested. After initiation of the said criminal proceeding the police is reported to have visited the marital house of the parties on a given date at midnight on 2.15 hrs. and the child was awaken from bed at the dead of night by police as alleged. The child was overtaken by a feeling of trauma and fear psychosis at midnight and the child was found to be mortally afraid of the presence of the police personnel. This Court is not inclined to make any observation about the unpleasant episode, but the impression which is gathered by this Court is that in order to adopt a punitive role to deal with an alleged sinner, a sin has been invited at the instance of the wife as a result of which the little female child had to bear the burnt of the aberrations of adult life. There are series of allegations and counter - allegations against respective parties. But this Court feels that manly police should not be allowed to disturb the sleep of a child of such tender age when she is found asleep in bed. The social scenario of the welfare State may be threatened to be affected because of the knocking of the door of a bed room of a child by police whose role unfortunately in this country is primarily to deal with persons who go on the wrong track of law. This Court wonders as to why and how the police personnel be activated to enter into a bed room of a child in her premises at midnight and in all fairness police ought to have waited till the advent of the dawn. This Court being a delegated representative of the paramount sovereign is conscious of its obligation to protect the permanent welfare of the children in the society and in order to achieve the object of the parental rights should be shelved in the background and it is necessary even for the superior forum to lay down the guidelines to clip the wings of Leviathan. This Court feels disturbed by looking into the social scenario and this Court further feels that all Subordinate Courts should be cautious and circumspect in directing police to deal with tender emotions of children of such tender age more carefully as friends of the society. Of course by way of a strait jacket formula police cannot be prohibited to deal with such situation but certainly it does not mean that police has a free hand to do anything and everything by dealing with such high-handed manner with a child. The child though in her interview appears to be a victim of fear psychosis and she was pleading that the presiding Judge was to keep her away at a safe distance from the police. The hearing of the child from the tremor has appealed to this Court and this Court hereby directs all the Subordinate Courts to keep police under restrictions, with specific guidelines and continuous vigil of the Court concerned in dealing with the children of tender age.

(2.) Apart from the general observations made in this order the Court is now proposing to deal with order impugned which is under challenge.

(3.) From the plain reading of the impugned order it manifestly appears that the order impugned is one of non-speaking nature. The learned trial Judge has referred to the interview of the Court with the child, but has not whispered anything about the interview and he has refused to record the same on the ground of the welfare of the child. Justice must appear to have been done and parties seeking justice have right to know as to what has happened. Such attitude of conspicuous silence maintained by this Court about the interview of the child does not find support of this revisional forum and on that score coupled with the nonspeaking nature of the same this Court is not in a position to sustain the impugned order. By a subsequent order unfortunate observations have been made about the learned Advocate for the respondent wife in the trial and the same has been branded as causing impediment to the carriage of justice. Such highhanded observations should not have found place in a judicial order as after all lawyers are part and parcel of the entire system of administration of justice. This Court accordingly deletes the said observation and also sets aside the subsequent order being Order No. 30 as well as order No. 29. There appears to be no proper adjudication of the matter in the trial Court in accordance with law with regard to the disposal of a petition for custody. In order No. 29 the learned Judge has only referred to one element namely, the element of interview and not on other elements which are necessary to be taken into account as they will guide the disposal of a petition for custody.