SUCHITRA CHHOTRAY Vs. PRAJEEV KUMAR CHHOTRAY

JUDGEMENT

(1.) CHALLENGE in this application is to the order dated 20.9.1994, passed by learned Judge Family Court, Cuttack in Civil Proceeding No. 178 of 1994, refusing prayer of the present petitioner to advance the date, and to pass an order relating to custody of the child. Learned Judge, Family Court did not accept the prayer to advance the date, because originally the case was posted to 23.11.1994 with the following reasons and observations :

(2.) THERE is no dispute about the normal rule that a child below five years of age has to be in the custody of the mother. But there may be circumstances for justifying a departure. The person who asserts that departure is warranted has to establish it. Welfare of the child has to be taken into consideration by the Court. But there is no substance in the plea of Mr. Mohapatra that because the child is with the father for last about three months the custody should be with him. In the Kerala case, on the facts the Court held that conduct of mother showed that she was not interested in the welfare of the child and did not even enquire about welfare of the child for nearly one year. The fact situation is different here. Learned Judge, Family Court has not considered these aspects and has disposed of the matter in a perfunctory manner. He has not considered the effect of Clause (a) of Section 6 of the Act. No material appears to have been placed before him for warranting a departure from the normal rule.

(3.) IN fights over custody, it is ultimately the child which is the worst sufferer. Because of differences of opinion and incompatibility of the parents, normally it is deprived of love of one of them. Even though, welfare of the child is kept in view, and custody is given to one, loss of company of the other has undeniable social and psychological impact Court, therefore, has to impose conditions so that for some time, unable it with the father or mother to whom custody is denied. In the instant case, if learned Judge, Family Court decides that mother (present petitioner) is to have interim custody, he shall fix at least three days on which father (present opposite party No. 1) shall have company of the child for period about two hours of each date fixed, at a place of choice of the father, preferably, at Cuttack or Bhubaneswar. Other appropriate conditions may be fixed by the learned Judge, Family Court.