HARULAL DASGUPTA Vs. SAUDAMINI MISRA

JUDGEMENT

(1.) The short question involved in this appeal is whether the custody of the minor boy Sanjeeb Kumar Dasgupta should continue with his mother Smt. Saudamini Misra, the respondent till the disposal of the proceeding in the Court below or the status quo should be disturbed and custody should be restored to his father Harulal Dasgupta, the appellant. The appeal under S.28 of the Hindu Marriage Act, 1955 (for short 'the Act') is directed against the order dt. 25-11-1983 by the Subordinate Judge, First Court, Cuttack in O. S. No. 32/82 directing that Sanjeeb Kumar shall remain in custody and care of the respondent till the final disposal of the divorce proceeding. The proceeding before the lower Court was initiated on a petition filed by the respondent under Ss.13 and 26 of the Hindu Marriage Act seeking a decree of divorce under S.13(1) (1a) of the Act severing the marriage tie between the parties and for a further direction that custody of the minor, Sanjeeb Kumar Dasgupta, be given to the mother. The ground for seeking divorce was long continuing cruelty allegedly exercised by the appellant towards the respondent. It is not necessary to state in detail the facts narrated in the petition for divorce filed by the respondent and in the objection to the said petition filed by the appellant. The facts material for the purpose of the present proceeding may be stated as follows : The respondent comes from a respectable conservative Oriya Bramhin family. She is the grand-daughter (son's daughter) of late Lokanath Misra, ex-Head of the Department of Chemistry, Revenshaw College, Cuttack. According to the respondent, her family is well connected and several relations of her are well placed in life. The appellant comes from a poor middle class Bengali family who after migrating from East Bengal has settled down at Daspalla in the district of Puri. The respondent has joined the film industry and has been working as an actress in different Oriya films. The appellant and respondent were married according to Hindu rites on 7th of Sept., 1966. Thereafter the respondent left the home of her parents and lived with her husband, the appellant. Her first son Sanjeeb Kumar was born, according to her, on 26-12-1968 though in the school Register his date of birth was shown as 20-12-1969. Her second son Sandeep Kumar Dasgupta was born on 14th Oct., 1970. Shortly after his birth he was given to the elder brother of the appellant, Sukumal Dasgupta, who resides at Sambalpur. There is no controversy regarding the custody of Sandeep Kumar and as such he is in no way concerned with the present proceeding. The respondent goes on to narrate in her petition that as she gained name and fame in her professional career and earned considerable wealth, the appellant became jealous of her and started ill-treating her. She bore the ill-treatment for considerable time but finally had to part company with her husband in September 1981, when she could not bear his cruelty any longer. It is further stated in the petition that the first child of the couple Sanjeeb Kumar Dasgupta has been in her care and custody throughout, even after her separation from her husband. He is now a student of Standard VI of 'Bleased Sacrament School' at Puri and the boy is doing very well both in his studies and also in his extra curricular activities like debates, games etc. The respondent claims her average monthly income to around Rs. 2000/-. She further claims that she has sufficient means to maintain her minor son and can afford to provide him proper education and all reasonable comforts in life. In support of her claim she has filed some documents showing that she has fixed deposits of Rs. 60,000/-. According to respondent, the appellant earns a meagre income of about Rs. 350/- to Rs. 400/- per month as a reporter in Daily News Paper 'Prajatantra'. He lives alone and has the habit of drinking. In these circumstances she prays that the custody of the boy should be left with his mother while granting the decree for divorce as well as during the pendency of the proceeding. She filed a separate application for a direction that the custody of the minor should continue with her till the disposal of the divorce proceeding, substantially repeating the allegations made in the other petition. She further stated that the respondent (appellant?) was trying to take the boy by some means or other and hence the urgent necessity for the court to issue a direction in this regard.

(2.) The appellant, filed his objection denying the allegations made by the respondent in her petition. Though he did not file any application for vesting the custody of minor Sanjeeb Kumar with him he stated in his objections to the two petitions of the respondent mentioned above that it is not desirable that the custody of the boy should be left with the mother since that is likely to make him wayward and the boy is likely to loose interest in education which would affect his future prospects in life. According to the appellant, the respondent moves about in different places in India in connection with her film career and the boy was being taken with her as a result of which he used to remain absent from the school. She also does not lead a life congenial to a respectable family and this is also likely to affect the character of the boy.

(3.) While the application for a direction that custody of the minor boy should remain with the mother till the disposal of the proceeding of the divorce was supported by an affidavit to which an objection was filed by the appellant, it was not supported by any affidavit. None of the parties led oral evidence in the proceeding in support of their allegations in the pleadings. They remained content with filing some documents, like letters exchanged between the spouses and certificate from the school showing the achievements of Sanjeeb Kumar.