'Conduct Not Fit To Be Guardian': Calcutta HC Overrules Prior Direction, Grants Custody Of 4 Yr Old To Father Over Deceased Mother's Friend

The Calcutta High Court has recently overruled its prior decision in a case by granting the custody of a four and a half years old girl child to her biological father instead of a family friend of her deceased mother. The Court issued the direction by relying upon the report of a clinical psychologist who had personally interacted with the child. 

The Court had earlier refused to grant custody of the minor girl to her biological father and had instead permitted the child to be in the care and protection of the family friend of her deceased mother. The biological father had however been granted visitation rights. 

Overruling the Court's prior direction, a Bench comprising Justice Ajoy Kumar Mukherjee and Justice Soumen Sen opined that the family friend, Julie Roy, is incapable of taking care of the minor child in question and further remarked, 

"we were of the view that Julie Roy was unfit for the custody of the child. Her conduct does not make her fit to become a guardian of the child. She is neither financially capable of rearing of the child nor can provide the child with education. She has her own family along with grown up son. On the contrary, the biological father is an engineer and is financially sound. He also had an attachment towards his child, and over a period of time as the report would suggest a bonding has developed between the father and the child."

The concerned Judges on December 6, 2021 had tried to personally interact with the child in order to determine whether the child is capable of forming an intelligent preference regarding her custody. Opining that such interaction was not possible since the child was being tutored by Julie Roy, the Court opined further, 

"..on 6th December, 2021 the child was produced before us. However, we could not interact with her as she was traumatized and started screaming. She was tightly holding Julie Roy and we had no doubt in our mind that the child was tutored and the situation was not at all conducive for a healthy interaction with the child."

It was further underscored that it is the duty of the Court to ensure that the child is kept away from negative influences and stressful atmosphere. It was further state that the Supreme Court in a catena of decisions has held that in dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the court to consider the welfare of the minor and to protect the minor's interest.

"When the bonding between the father and the child is growing, we do not want to disturb the present position", the Court remarked further. 

The Bench further observed that the measures that the Court has taken is not in conflict with Section 42 of the Guardians and Wards Act, 1886 as it is empowered to take such measures as necessary for the welfare of the child. 

The Court also took on record the report of the Counselor, Juvenile Justice Board wherein it had advised that the child should be in the custody of her biological father instead of Julie Roy. The report had stipulated, "The lady for all her professed love for the child seemed more concerned about her own emotional demands. She seemed to be more inclining to antagonize the child against her biological father. It would have been very congenial if she had actively and selflessly participated in helping the child comfortably adjust with her biological father by simultaneously giving her emotional support as needed. The father seemed well intentioned to get back his child and give her a healthy life but of course it needs periodic follow-up."

Pertinently, the Court had directed the Child Welfare Committee (CWC), Howrah to isolate the child from the present guardian Julie Roy by exercising its powers under Section 37 of the Juvenile Justice (Care and Protection Of Children) Act, 2015 (JJ Act). This was done as the Court was of the impression that the child was being influenced by Julie Roy and that she would never allow the child to interact freely with her father and develop a bond between the father and the child. 

Opining that even if the child in question may not be in need of care and protection in strict sense of the term under the provisions of JJ Act, the Court observed that it can exercise such jurisdiction in the larger interest of the child. 

 "The JJ Act 2015 is a recent statute and provides mechanism for rehabilitation and social integration of a child with the family. The Act provides for specialized agencies to function closely for the welfare and betterment of a child. Even if it is assumed for the sake of argument that the child may not be a child in need of care and protection in strict sense of the term under the provisions of JJ Act. We feel that nothing prevents the court from adopting such measure and/or measures with the help of the institutions and authorities established under the JJ Act for the social integration and family bonding of the child with her biological father", the Court underscored further. 

Reliance was further placed on the Supreme Court decision in Nil Ratan Kundu v Abhijit Kundu to rule that in a matter of child custody the court is exercising parens patriae jurisdiction and that the Court is required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education and general maintenance, and the favourable surroundings.

"It is well settled that while deciding the matters of custody of a child the welfare of the child is primary and paramount. If the welfare of the child so demands, then technical objections cannot come in the way. The Courts are expected to decide the issue of custody on a paramount consideration which is in the best interest of the child", the Court observed further. 

 Accordingly, the Court directed the District Child Protection Officer, Child Welfare Committee, Howrah, Counselor, Juvenile Justice Board, the child psychologist and the clinical psychologist to file further status reports in sealed envelops before the next date of hearing which is slated to take place on April 27. 

Background 
In the instant case, the mother of the minor had committed suicide on March 7, 2018, and thereafter the biological father of the minor had been arrested in connection with the criminal case registered over the suicide. Subsequently, the father had moved an application seeking custody of the minor who at that point of time had been in the custody of her maternal grandmother, Kajal Saha.

The trial court upon consideration of the facts and circumstances of the case, directed that the minor should continue to remain in the custody of her maternal grandmother until she attains 15 years of age and is in a position to make a conscious decision regarding her own custody. This order was subsequently appealed by the biological father vide the instant plea.

During the pendency of the appeal, the maternal grandmother also committed suicide. Under such circumstances, the minor was put in the care and custody of Julie Roy, a neighbor and a distant relation of the mother of the child.

Also Read: Calcutta HC Grants Custody Of 4-Yr-Old Girl To Deceased Mother's Friend Over Biological Father, Grants Visitation Rights To Father

Case Title: Tushar Kanti Das v. Kajal Saha

Case Citation: 2022 LiveLaw (Cal) 77

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