Calcutta HC
Kolkata: The child of a separated couple who has been living with his father for five years cannot be “planted som-ewhere else” even if the father’s educational qualification is less than the mother’s, Calcutta HC held on Tuesday. The mother, who was recently awarded custody of the child by a trial court, has a master’s in music. She runs a music school and is also a private tutor. The father, whose custody claim over the 8-year-old has been upheld by the high court, is a matriculate and earns a living selling fish. The child, who has been living with his father since the couple separated five years ago, had told the trial court judge that he wanted to stay with both parents. Since the couple filed for restitution of conjugal rights several times while the custody battle was on, a HC division bench of Justices Sabyasachi Bhattacharyya and Supratim Bhattacharya observed on Tuesday: “It transpires that all is still not lost and there is ample scope for the parties reconciling their matrimonial disputes, as well as a chance of the parties staying together as a couple by shedding their personal differences, which will be of utmost benefit to the child in the final count. ” The bench referred the couple for mediation, to be supervised by the Calcutta HC mediation committee. The committee was requested to include a psychologist in the mediation. The trial court in a recent order had noted that the father earned more than the mother but awarded custody to the mother on the grounds that she was more educated. The judge had observed that the child’s upbringing would be affected if he were to be deprived of his mother’s love. Acting on an appeal by the father against the trial court order, the division bench observed on Tuesday: “The finding of the trial judge is that any detachment of the minor from his mother may cause a scratch in the mind of the minor, who is eight years old. That scratch was caused five years ago; from age three to eight, he has been residing with his father… He has been living with his father for five years; now we cannot pick him up and plant him somewhere else.” The bench also observed: “The trial judge was swayed more by personal inclinations and views than the facts of the case.” The couple separated in 2021, when the child was just three. The man has alleged that his wife left to live at her paternal home, while the woman claimed she had been driven out of the house by her husband. The division bench said no evidence was provided to establish that the child’s education suffered during the five years he was with his father. Rather, it was noted that the child is being tutored by his aunt and two private tutors. The mother has been granted visitation rights by the high court.
