The Calcutta High Court has stayed a Trial Court order that directed the transfer of custody of an eight-year-old child from his father to his mother primarily on the grounds of the mother’s higher educational qualifications. The Division Bench observed that the lower court’s decision appeared to be based on “conjecture and surmise” rather than material facts regarding the child’s welfare.
The Bench, comprising Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya, admitted the appeal filed by the father and referred the matrimonial and custody dispute to mediation, specifically requesting the inclusion of a professional psychologist in the process.
Background of the Case
The appeal was preferred against an order by the Trial Court granting custody of the minor child, Priyanshu, to the respondent-mother. The appellant-father and the respondent-mother have been separated since 2021.
Counsel for the appellant-father submitted that the child has been living with the father for the last five years, since the age of three. It was argued that the Trial Judge, merely considering the educational qualification of the mother, transferred custody, leaving only visitation rights for the father. The appellant contended that uprooting the child from his paternal home, where he is currently residing, would cause him distress.
On the other hand, the counsel for the respondent-mother opposed the appeal, arguing that the mother is well-qualified and that the child’s welfare would be better sub-served with her. Reliance was placed on the Trial Judge’s interaction with the child, where the judge was reportedly satisfied that the child was willing to stay with the mother.
Court’s Analysis and Observations
The High Court scrutinized the impugned judgment and noted that the Trial Judge had proceeded “primarily on the premise of the higher educational qualification of the mother.”
The Division Bench was critical of the Trial Judge’s observation that detaching the minor from his mother might cause a “scratch” in the child’s mind or “demoralization” regarding his future and education. The High Court termed these findings as prima facie “conjecture and surmise,” stating:
“However, the said findings do not find support in the materials available before the learned Trial Judge. That apart, it seems that the learned Trial Judge was swayed more by the learned Trial Judge’s personal inclinations and views than the facts of the case.”
The Court emphasized that the child has been residing in his paternal home for five years, where his aunt and private tutors are attending to his education. The Bench observed:
“There is no material reflected from the impugned order that the child’s education has suffered of late or that there was any particular reason that the child should be uprooted from his normal and habitual residence for the asking, just on the conjectural premise that mother’s love is more required by the child.”
Decision and Directions
Finding sufficient arguable points, the High Court admitted the appeal and stayed the operation of the Trial Court’s order regarding the change of custody. The Court established an interim arrangement to ensure the mother’s access to the child during the pendency of the appeal.
Visitation Rights: The Court directed that the respondent-mother shall have visitation rights every weekend. She is permitted to pick up the child from the appellant-father’s residence every Saturday at 05:00 p.m. and keep the child at her residence until Sunday at 07:00 p.m., at which time she must return the child to the father.
Referral to Mediation: Noting that the father had initially filed a suit for restitution of conjugal rights before filing for divorce, the Court observed that “all is still not lost” and there is ample scope for reconciliation. The Bench remarked that if the parties could resolve their differences, it would be of “utmost benefit to the child.”
Consequently, the Court referred the matter to the Calcutta High Court Mediation Committee to explore the resolution of all disputes, including custody and matrimonial issues.
“We request the Calcutta High Court Mediation Committee to make at least one professional Psychologist a part of the mediation process by appointing her/him as a Mediator,” the Court ordered.
The Court further clarified that the interim custody arrangement would continue till the disposal of the appeal and directed the preparation of paper books for the final hearing.
