UMA TALAPATRA Vs. MANABENDRA TALAPATRA

JUDGEMENT

(1.) THE present revision application is directed against Order Nos. 29 & 30 dated 2-9-1994 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 Section 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 protecting litigation. The same was preceded by initiation of spate of criminal proceedings initiated by the wife against the husband, and the husband has been attempted to be roped in on a number of offences punishable under the Indian Penal Code. The same having been withdrawn it was followed up by filling defamation proceeding at the instance of the husband and attitude of the respective parties is to punish each other.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 sometime on 19th June, 1985. This Court while proceeding further on 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 act 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 shorn of details, the allegation is from the side of the mother was that she was driven away from the marital house 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 affecting trauma and fear psychorsis 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 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 aberartions of adult life. There are series of allegations and counter allegations against the respective parties. But this Court feels that ordinarily 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 to 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.

(2.) THIS Court being a delegated representative of the paramount sovereign in conscious of its obligation to protect the permanent welfare of the children in the society and in order to achieve the object the parental rights should be shelved in the background and it is necessary ever 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 through her interview appears to be a victim of fear psychosis and who 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 termor 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.

(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 the 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 the Court about the interview of the child does not find support of his revisional forum and on the score coupled with the non-speak­ing nature of the same this Court is not in a position to sustain the impugned order. By a subsequent order some 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 high-handed 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 deleted the said observation and also set 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.