JUDGMENT
Samaresh Banerjea, J.
1. The instant revisional application is directed against Order No. 9 dated 26.9.1994 passed by Shri S.B. Rich, learned Additional District Judge, 13th Court, Alipore in Matrimonial Suit No. 15 of 1994, allowing the application of the Opp. Party for custody of a male child under Section 26 of the Hindu Marriage Act, 1955.
2. The aforesaid suit, which is now pending before the Trial Court, was filed by the husband, the present petitioner against the Opp. Party for dissolution of marriage on the alleged ground of cruelty and desertion.
3. In the aforesaid suit the wife being the Opp. Party herein, filed an application under Section 26 of the Hindu Marriage Act for custody of the male child of the parties aged about 6 years. In the aforesaid application made by the Opp. Party it was, inter alia, pleaded by the Opp. Party that after driving out the Opp. Party from her matrimonial home, the husband being the present petitioner has forcibly detained the child aged 6 years, borne out of the lawful wedlock of the parties; that the child was admitted in Sunshine School at Kurseong by the petitioner against the wish of the Opp. Party only to separate the child from the mother, although she was very careful and attentive to the child and due to nature of his preoccupation the father could not devote any time for the upbringing of the child; that because of separation from the mother the child was forced to live in a school hostel feeling emotional starvation, a situation which is not at all conducive to the happy and healthy growth of the child; as the Opp. Party is not getting any access to the child due to instruction given by the petitioner to the school authorities the natural upbringing and growth of the child is being disturbed and if such a situation is permitted to continue for the longer periods, the same shall cause permanent damage to the over all intellectual, mental and physical growth of the child; that the petitioner has recently come to know that the child has been brought to Calcutta and at present staying with the father; under such circumstances the custody of the child should be restored to the mother for proper maintenance and education as during the formative years of the development of mental faculty of the child, the company of the mother is very much needed.
4. Subsequent to the filing of the aforesaid application the petitioner filed a supplementary to such application before the Trial Court incorporating additional facts and/or statements in connection with the aforesaid application under Section 26 of the Hindu Marriage Act. In the aforesaid supplementary number of allegations were made by the Opp. Party against the petitioner. It was pleaded inter alia that the husband is addicted to alcohol and leads unethical life and passes his days with bad women; that the husband keeps association with culprits and bad women and in such atmosphere the child cannot get proper education; that the husband is inferior in educational qualification to the wife who is an ordinary graduate, whereas the wife is Master Degree holder, along with other certificates; while wife belongs to a society of culture, the husband is the stays in a Railway Quarter unauthorisedly for the purpose of leading an unsocial life with another lady, and therefore, such an atmosphere is not at all congenial to the proper development of the child; the family members of the husband are un-educated and there is no member in his family except the old and aged grandmother and grand-father of the child who cannot look after the child properly; but on the other hand family members of the wife are highly educated and well established.
5. For all these reason, it is pleaded in the said supplementary that the welfare of the child and his proper, mental and physical development can only achieve if the child remains with the mother.
6. The aforesaid application was contested by the husband by filing objection.
In such objection, the husband after denying the allegations made against him pleaded inter alia that the child was admitted to Sunshine School at Kurseong in November, 1992 for which he had to be kept in hostel for the betterment of his education as atmosphere at the home in Calcutta is not at all congenial for which the wife is responsible; due to abnormal situation created by the wife at Kurseong the husband was compelled to take the child back to Calcutta and to admit him at ‘Dolna’, a reputed school in Calcutta; the child is quite healthy and happy with the father and there is every possibility for him sustaining mental growth; that the irregularity of the life style of the wife coupled with her irrational temperament and whimsical conduct and behaviour will seriously fell upon the child’s future; before deciding the question of custody the paramount interest to be taken into consideration is the welfare of the child and since the child is already habituated and acclamatised in the life-style of a peaceful discipline and congenial atmosphere in the custody of the father, there is no reason why the wife will have custody of the child.
7. The learned Additional District Judge, 13th Court, Alipore, after hearing both the parties and considering all the relevant materials on records including the application made by the wife for custody under Section 26 of the Act as also the supplementary application, the objections filed by the husband, has allowed the application made by the wife giving the custody of the child to the mother keeping in mind, the welfare of the child.
By the said order the learned Judge directed to give custody of the child from the father to the mother within 15 days. It appears thereafter, the husband filed an application before the Trial Court itself for stay of the operation of the order, to enable him to go to the High Court which prayer was rejected.
8. The husband thereafter, moved this Court during long vacation before the vacation Court ex-parte whereupon a Civil Order was issued directing maintenance of status quo by N.K. Mitra, J. The wife thereafter made an application for vacating interim order also before the vacation Court and myself had the occasion to hear such an application of vacating interim order sitting in vacation. On 28th October, 1994 the application was heard by me during vacation when a prayer for adjournment was made on behalf of the husband on the ground the Advocate on Record as well as the learned Advocate leading him will not be present in Calcutta before 3rd November, 1994. However, considering the facts that the notice of such application was served under the order of the Court upon the husband fixing 28th October, 1994 as the date for hearing and the prayer for adjournment was seriously opposed by the mother inter alia, on the ground that the whole purpose of the husband is to avoid handing over the custody of the child to the mother inspite of the Court’s order and after considering the fact that at that time the hostel was closed and the child was with the father and the mother was not given access to the child for quite some time past and also considering the welfare of the child who is only 6 years old. I directed that the matter would be heard on 3rd November, 1994 and without prejudice to the rights and contentions of the parties the husband shall handover the child to the mother at her Dum Dum residence and the child shall remain with the mother till 3rd November, 1994 subject to any order that may be passed on the said date and the mother would bring the child in Court on 3rd November, 1994 and she shall not take the child outside Calcutta till 3rd November, 1994.
9. On November 1, 1994, the learned Advocate appearing for the Opp. Party drew attention of the Court that the order passed for handing over the child on.28th October, 1994 was not complied with, whereupon the learned Advocate appearing for the husband submitted that the husband was unable to comply with such order as the child was refusing to go to the mother. As I was not satisfied with such explanation prima facie I issued a rule for contempt suo motu against the husband for wilful and deliberate violation of the order dated 28th October, 1994 passed by me. The contempt rule is still pending. Since there was every likelihood for the husband to continue with the breach of the order passed on 28th October, 1994, I further directed that the Officer-in-Charge, Narkeldanga Police will take the child from the father and handover his custody to the mother when the father may accompany the child. On November 3, 1994 it was submitted by the Officer-in-Charge, Narkeldanga Police Station inter alia that although the child was not willing to go to the mother, he was taken from the custody of the father and while he was being taken to the mother in a taxi he went on crying and ultimately fainted, for which he had to be admitted to B.R. Singh Hospital.
10. Thereafter, I directed that the mother should be permitted to see the child at the hospital and after the child is found by the Doctor to be fit for release, the mother and the Officer-in-Charge, Narkeldanga Police Station should be informed and the said Officer-in-Charge will hand over the child to the mother, the said order was passed without prejudice to the rights and contentions of both the parties and subject to further order that may be passed. The husband-petitioner preferred an appeal against the said order before a Division Bench on the submission of both the parties that they would live together and settle their dispute, disposed of the said appeal without deciding the question of maintainability.
11. As the matter related to custody of the child of 6 years only and the paramount consideration in such matter is the welfare of the child and as the affidavits were complete, being of the view that the matter should take utmost priority, 3rd November, 1994 was fixed for final hearing for the revisional application itself and final hearing started on that day. But although submission of the learned Advocate appearing for the petitioner/husband could be completed, because of the paucity of time, the learned Advocate appearing for the wife could not complete his submission and therefore the matter was heard-in-part and ultimately hearing was concluded on November 24, 1994.
12. Mr. Bikash Ranjan Bhattacharjee, learned Advocate appearing for the petitioner/husband has assailed the order inter alia on the ground that the learned Judge acted illegally and with materially irregularity in holding that a person, engaged in the standing business gets little time to devote to his child. It is contended by Mr. Bhattacharjee that merely because a person is a businessman, the same does not necessarily mean that he is unable to devote time to the child and there being no evidence before the learned Judge to that effect, the learned Judge acted illegally and with material irregularity in coming to such finding. It has been further submitted by Mr. Bhattacharjee that in the matter of deciding the custody of a child paramount consideration is the welfare of the child and such welfare of the child can best be achieved in the instant case if the child remains with the father who admittedly is also the natural guardian under the Statute, and there is no reason why the father should be deprived of the custody of the child especially when the wife has not been able to make out any case as to why the father should be deprived of the custody of the child. It has been submitted that the aspect was not considered by the learned Judge at all and therefore there was a jurisdictional error on the part of the Trial Court.
13. It has been further submitted by Mr. Bhattacharjee and upon which most emphasis has been laid by Mr. Bhattacharjee repeatedly, that in the matter of such consideration it is also necessary to ascertain from the child his own wish although the learned Judge examined the child in his chamber the result of such examination has not been recorded in the order passed by the learned Judge and the same was also a jurisdictional error on the part of the Trial Court. Referring to a large number of decisions of the Supreme Court as also of different High Courts Mr. Bhattacharjee repeatedly argued that under such circumstances this Court should examine the child and ascertain his wish. It was submitted that if it is done, it will be seen that child is quite happy with father and he himself is totally against going to the mother and accordingly custody of the child should remain with the father which is quite in consonance to his welfare, both physical and mental and such position therefore should not be disturbed by the Court by giving custody of the child to the mother.
14. Mr. Ganesh Chandra Panda, learned Advocate appearing for the wife, Opp. Party on the other hand has jointed issue with Mr. Bhattacharyya, on a number of points. Firstly, it has been contended the instant application being revisional application under Section 115 of the Code of Civil Procedure, not only the petitioner must satisfy the Court that there is an error of jurisdiction within the meaning of Section 115 of the Code of Civil Procedure, in addition to that he must satisfy because of passing of the impugned order, a serious prejudice has been caused to the petitioner but in the instant case there has been neither any jurisdictional error committed by Trial Court nor the petitioner has made out any case even, that the impugned order if allows to stand, will cause serious prejudice to him and therefore this application is liable to be dismissed on such ground alone.
15. It was further submitted by Mr. Panda that in any event, the learned Judge after taking into consideration all relevant factors has allowed the application after considering the welfare of the child and the learned Judge rightly held that the very fact that the child is kept in a hostel coupled with the fact that the father is businessman would indicate that he has little time to devote to the child. It is further submitted that paramount consideration being welfare of the child it has to be kept in mind that for proper and healthy development of the child, both mental and physical, parental love is an absolute necessary and for child of such tender age like this instant case love of mother is more important than that of the father and therefore there was nothing wrong in the order passed by the learned Judge. Mr. Panda also disputed the allegation that the learned Judge has not recorded his finding after examining the child. It has been submitted by him although in impugned order the learned Judge may not have dealt with the same elaborately, it was clearly stated by the learned Judge that the child has not her developed sense of understanding. It has been further submitted by Mr. Panda that the Court is not bound to examine the child for ascertaining his wish relating to the matter of his custody nor the same is absolutely necessary in all cases although it may be desirable in certain cases and in the instant case such examination is wholly unnecessary because of the fact that the child who is only b years old is not capable to forming independent and intelligent opinion. It has been further submitted such examination may not reveal the correct state of affairs as to the opinion of the child since the mother is not being given any access at all to the child for quite some time past and the child is being tutored by the husband creating an adverse feeling against the mother. Mr. Panda has also relied on a large number of decision both of the Supreme Court as also of different High Courts for the purpose of substantiating his arguments.
16. In the matter of deciding the custody of the child, whether under the Hindu Marriage Act, or under the Guardians and Wards Act or Hindu Minority and Guardianship Act, the paramount consideration is the welfare of the child. Such position of law, now being well settled through judicial precedence both of the Supreme Court as also of different High Courts can hardly be disputed by anybody and indeed in the instant case, the same is not disputed by either of the parties.
17. Keeping such principles of law in mind if the order passed by the Trial Court is examined, it will appear that the learned Judge was quite conscious of such principles of law and after considering all aspects of the matter has allowed the application granting custody to the mother for welfare of child. After considering the said order and the submission of the parties carefully I do not find any jurisdictional error committed by the learned Judge warranting interference by this Court in its revisional jurisdiction under Section 115 of the Code of Civil Procedure.
18. One of the reasons for which the learned Judge has given custody of the child to the mother is that the child is only 6 years old and yet in such tender age admittedly he has been kept in a school hostel by the father who is a businessman getting little time to devote to the child and that such hostel life deprived from parental care is not always conducive to proper physical and mental growth of the child and for a child of 6 years the love of mother is more important for sometime than the father. The learned Judge in allowing such custody to the mother has also taken into consideration the fact that the child’s education can be better looked after if he stays with the mother, as in the family of the mother educational atmosphere prevails because of the educational qualification of the mother and her parents.
19. I am unable to accept the contention of Mr. Bhattacharjee the learned Counsel appearing for the petitioner/husband, that the impugned order of the Trial Court suffers from jurisdictional error as in absence of any evidence the learned Judge could not have come to a finding that the father being a businessman gets little time to devote himself to the interest of the child.
20. It however appears from the impugned order that the learned Judge has really made a general statement that a person engaged in standing business gets little time which is common knowledge and as admittedly 6 years old child of the petitioner has been kept in a hostel at such tender age by the father’ he has drawn merely an inference that the same has been done because being businessman the petitioner does not get any time. In my view, no jurisdictional error has been committed by the learned Judge by drawing such inference. Drawing of such inference on admitted faces is quite legal. It is true, as submitted on behalf of the petitioner, that the mere fact that a person is a businessman not necessarily means that he cannot devote time for his child. But in the instant case admittedly the father who is a businessman has kept the child of such tender age in a hostel and no explanation of the same is forthcoming from the father inspite of specific allegation of the mother in her application under Section 26 of the Act that because of the nature of his precaution, the father cannot devote time for up bringing of the child and his old parents and incapable of looking after the child.
21. The further submission made on behalf of the petitioner that there was no evidence before the Trial Court that the custody of the child with the father would not be conducive to the welfare and upbringing of the child is wholly misconceived and not tenable. That the child has not been kept by the father in his residence but in a hostel of a school although he is only 6 years old is an admitted fact. The fact that the educational qualification of the wife and her family are higher than the educational qualification of the husband and his family are also not disputed. The fact that the husband is a businessman is also not disputed. On the basis of such materials the finding of the learned Judge appear to be quite justified. The parental love and care is absolute necessity for any child for his or her mental and physical development and moreso when the child is in such a tender age of 6 years. Although the husband in his objection to the application made under Section 26 of the Hindu Marriage Act, before the Trial Court has given an application as to why the child to be sent to Kurseong and kept in a hostel, namely atmosphere at home having been vitiated by unreasonable behaviour of the wife, no explanation has given as to why after the child has been brought back to Calcutta he has to be kept in a hostel admittedly when the wife is not there at the matrimonial home now. The only reasonable inference which can be drawn from such admitted fact that the husband is a businessman, the husband not having sufficient time because of his preoccupation in his business is unable to devote time to the child and hence he has been kept in hostel. Similarly, as to the educational interest of the child the learned Judge again relying on the admitted facts, namely that the mother and her family members are more educated than the father and his family members and the father is a businessman but the mother is a school teacher, justifiably was of the view that the education of the child can be better looked after if the child remains with the mother in whose family better educational and cultural atmosphere prevails.
22. Mr. Bhattacharjee has also tried to contend that since the child is above 5 years and the father is natural guardian of the child under the law, he has exclusive right in law for the custody of the child and the matter cannot have any preferential claim for custody in law, the child being aged above 5 years and therefore, the father cannot be deprived of the custody of the child unless it is shown for a very good reason that he has disentitled himself to have such custody which the wife has failed to do.
23. I am unable to accept such contention of Mr. Bhattacharjee. While there is no denial that under the law, father is the natural guardian of the chil under the Guardian and Wards Act, and mother can have preferential claim for a child upto 5 years, at the same time in the matter of deciding custody, paramount considerations welfare of the child and not who is the legal guardian of the child.
24. The Supreme Court in the case of Chandrakala Menon v. Vipin Menon reported in 1993(2) SCC 5 = I (1993) DMC 135, held, after noting the fact that the father is a natural guardian of the minor child, that the question regarding the custody about the minor child cannot be decided on the basis of the legal rights of the parties; the custody of a child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor.
25. In the instant case, as pointed out hereinbefore, the learned Judge after taking all relevant factors under consideration was of the view that the custody of the child with the mother will best serve the welfare and interest of child as also his education. Under such circumstances, it is immaterial that the husband is natural guardian of the child.
26. In the case of Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka , which was a case under the Guardians and Wards Act and Parsi Marriage and Divorce Act, while considering the custody of the child the Supreme Court again laid down the principle thus :
“The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor the Court has special responsibility and it is the duty of the Court to consider the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.”
27. In Halsbury, Laws of England, 3rd Ed. Vol. 21, the Law is succinctly stated in para 428 at Pp. 193-194 in the following terms :
428. “Infant’s welfare paramount. In any proceeding before any Court, concerning the custody of upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income, therefore, the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law, possessed by the father in respect of such custody upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead.
Even where that infant is a foreign national, the Court while giving weight to the views of the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other Country”.
28. Mr. Bhattacharjee has also relied upon the said decision of the Supreme Court for the purpose of contending that the fact that the child was kept in hostel and not in home does not prove anything as often the welfare of the child can be better ensured by keeping the child in hostel. In the case of Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka (supra) no doubt the Supreme Court held under the facts and circumstances of that particular case that the best way to serve the welfare and interest of the girl who was aged about 11 years would be to remove the child from the unhealthy atmosphere at home which had caused a very great strain on her nerves and had certainly affected her healthy growth, to the Boarding School where she could live a normal healthy life and would have a good opportunity of proper education and healthy growth. But such decision was arrived at by the Supreme Court found the atmosphere at home had become unhealthy and the same had already caused great strain to the nerves of child and accordingly it will be best for the child to live in Boarding School. That apart, the child involved in the said case was 11 years old and not of tender age of 6 years as in the instant case.
29. While in the matter of deciding the question of custody, although it is settled principles of law that paramount consideration will be welfare of the child, what will be welfare of a particular child, however, cannot be straight jacket formula and may vary from child to child, considering the age of the child, the social background of the family, educational attainments of the parents and their family, atmosphere at home, the status in the society and many other factors. In the aforesaid case where the child was 11 years old, the Supreme Court found that the Boarding School will be better for her than her presence at home because of the vitiating atmosphere at home had caused damage to her physical and mental make-up. Because of such decision of the Supreme Court under particular facts and circumstances of the case it will be futile to argue the keeping a child in the hostel will always be conducive to his welfare and mental and physical development.
30. A child of the tender age of 6 years certainly requires parental love and care and the presence of a child of such tender age in the family is the normal rule in a middle class family in our country, family being the king pin of the Society. The husband in his objection to the application under Section 26 of the said Act before the Trial Court, nowhere explained the reason as to why the child has been kept in hostel after he has been brought back to Calcutta. It was never the case of the husband, admittedly when the wife is no more there at home even then the atmosphere is vitiated for which presence of the child at home will not be conducive to his welfare. The learned Judge therefore, rightly drew inference that the very fact that such a child who is in need of parental love and care is kept in hostel and the father is a businessman, indicate that he is unable to devote sufficient time to the interest of the child. In this connection, the following observation of Supreme Court in the case of c is worth quoting :
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“The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care form both the parental home. Where, however, family dissolution due to son unavoidable circumstances, becomes necessary, the Court has to come to a judicial decision of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels : nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of the children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian Court in a case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirement of welfare of the minor children and the rights of their respective parents over them.”
31. In the case of Raj Kumar Gupta v. Barbara Gupta, a Division Bench of this Court , inter alia held that the legal right to custody is not by itself the decisive factors in matters relating to retention or restoration of custody and custody of a child in tender age with the mother is ordinarily be presumed to be conducive to the welfare of the child.
32. Mr. Bhattacharjee appearing for the petitioner has also tried to argue by referring to the application made by Opp. Party before the Trial Court asking alimony pendente lite, wherein it was stated that wife had no proper income, and the wife cannot have custody of the child as she would not be able to maintain the child. Apart from the fact that such a point is being raised for the first time before the High Court in revision and the wife in her supplementary to Section 26 application has stated that she now teaches in a school, such contention is wholly misconceived. If the wife does not have sufficient income as alleged by the petitioner, it is the bounden duty of the husband, both legal and normal, to maintain the wife and the child and to pay the requisite amount of alimony for the aforesaid purpose. It is understood such application for alimony pendente lite is pending before the Trial Court.
33. It has been also argued by Mr. Bhattacharjee and if I may say so, repeatedly and with much vehemence that before deciding anything in regard to the custody of the child, Court must hear the child to ascertain his desire and if it is done, it will be found that the child is quite happy with the father and is unwilling to go to the mother. He has drawn the attention of the Court to Section 26 of the Act itself which provides inter alia in any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance, and education of minor children, “consistently with their wishes, wherever possible”.
34. He has also relied on the decision of the Supreme Court in this connection, Mr. Panda on the other hand relying on a few decision has tried to argue that it is not absolutely necessary in each case to ascertain the wish of the child and such exercise is fruitless unless the child is capable of forming his independent intelligent opinion which according to Mr. Panda is not possible at this stage as the child is of the tender age of 6 years.
35. Section 26 of the Act provides that the matter of custody is to be decided consistently with the wishes of the minor, and the same is a relevant factor to be taken into consideration. But in my view, such wish of the minor can only be relevant factor if such minor concerned is capable of forming an independent and intelligent opinion. The expressions used in the said section “wherever possible” is indeed significant. Such wish of the minor cannot merely be a childish fancy, obstinancy, or whims, but is to be a product of intelligent reasoning, not tutored by others which is only possible if the minor concerned is capable at the particular age of forming an independent and intelligent opinion. It is then only possible to ascertain the wish of the child consistent with the welfare of the child.
36. Mr. Bhattacharjee has assailed the impugned order passed by the Trial Court on the ground that although the child was examined by the learned Judge in his chamber, but the learned Judge has not recorded in his order what was the wish of the child and what was the result of such examination of the child. It has been argued repeatedly before this Court as the Trial Court did not record the finding of such examination and therefore the wish of the child was not taken into consideration which is a relevant factors, this Court should examine the child and only after ascertaining the wish of the child will pass the order and deliver the judgment.
37. Such criticism of Mr. Bhattacharjee of the impugned order of the Trial Court appears to be not really justified. Perhaps the learned Judge not being eloquent in his observation relating to recording of such examination, has led to such criticism. It, however, appears that learned Judge has recorded in the impugned order that the child has not yet developed sense of understanding. Such observation of the learned Judge was obviously the outcome of his examination of the child.
38. Be that as it may after closing of the arguments of both the parties on November 24, 1994, on November 29, 1994 I first of all had a talk with both the husband and wife in presence of the child in my chamber, in attempt to reconcile their dispute as it was reported by both the parties before this Court that after the husband preferred an appeal against as order passed by me in a proceeding for contempt before the Trial Court, both the parties expressed their desire before the Appeal Court to live together to reconcile their disputes and the Appeal Court thought that the same will be the best solution not only for the parties but also for the welfare of the child. Unfortunately, it was later on reported that the same did not materialise. The wife alleged it is the husband who did not receive her when she went to the matrimonial home and was not even present at home to receive her. The husband alleged that it is the wife who did not come at all to the matrimonial home although he waited for long time, but she sent police to the matrimonial home on baseless allegation to harass the husband.
39. My attempt for reconciliation however has failed because of adament attitude of both the parties, although I tried to impress upon both that they should forego their ego and reconcile the dispute in the interest of the child.
40. On the same date, I also had a talk with the child alone in my chamber for quite sometime for the purpose of ascertaining his wish as to his custody and after , such talk with the child I am of the view that he is not yet capable of forming his own independent intelligent opinion and/or judgment for the aforesaid purpose. No doubt, whenever asked whether he is willing to go to his mother he has replied in the negative but the same did not appear to be based on any reason out of his own independent judgment, but a product of tutoring. The child mostly remained silent, whenever asked the reason why he does not wish to see the mother or stay with her. Later on, the child said when he was only one year old he was scratched by his mother in his neck and was beaten up by his mother. Still later when he was asked how could he remember such incident, which happened when he was only one year old and who told him about such incident, he replied that no one told him. Still later he said that such incident took place when he was 2 years old or 3 years old. When he was told that the mother even if might have beaten him once, that does not mean she would not love him now and therefore why she cannot go to the mother now, how remained silent. When asked whether the mother loved him today, when she saw him today, he said yes. Once he said that he would never love his mother and he would die if he goes to his mother. When he was told that a child does not die when he goes to his mother who loves the child and why he would die if he goes to mother, he remained silent. His said answers were vague, incoherent, not a product of independent opinion and judgment. He appeared to be tutored and it also appeared that an adverse feeling is sought to be created in his mind against his mother.
41. Under such circumstances, the wish of the child is not a relevant consideration in the instant case and I fully agree with the learned Judge of the Trial Court that he has not been able to form his own independent opinion and judgment.
42. In the result, the application fails and the same is hereby dismissed. The impugned order No. 8 dated 26.9.94 passed by the Additional District Judge, 13th Court, Alipore is affirmed. There will be no order as to costs.
43. The petitioner shall handover the custody of the child to the mother within a week from the date at her residence being No. 4, Jawpore Road, P.S. Dum Dum, Calcutta-700074. In default of the same, the Opp. Party will be at liberty to take all appropriate steps to law to recover the child and to have his custody.
The petitioner husband however will be at liberty to visit the child once a week at the residence of the wife after giving prior intimation to the Opp. Party.
Later
The learned Advocate for the petitioner prays for stay of operation of the order. The prayer is considered and refused.