Sufficient amount of dowry by way of money, ornaments and other articles was given to the respondent.
By the impugned orders, both the Courts below directed handing over custody of minor child Antariksh Kundu to father Abhijit Kundu, respondent herein.
It is the case of the appellants that they had a daughter named Mithu whom they gave in marriage to Abhijit Kundu on August 8, 1995.
On the returnable date, i.e. on March 24, 2008, the Court heard learned companynsel for the parties.
Trial Courts order The trial Court, after companysidering the evidence on record, allowed the application and held that respondent was father and natural guardian of Antariksh and the present and future of Antariksh would be better secured in the custody of respondent.
The said order is challenged by the appellants maternal grand parents of Antariksh in this Court.
The respondent was arrested by the police in that case.
But the High Court also, by the order impugned in the present appeal, dismissed the appeal holding that the trial Court was right in ordering custody to be given to the father and the said order did number suffer from infirmity.
It was, however, observed in the order that an appropriate order would be passed on March 31, 2008, the day on which the matter was ordered to be listed for further hearing.
Accordingly it passed an order that custody of Antariksh be immediately given to the father.
The marriage was performed according to Hindu rites and ceremonies.
Mithu was totally neglected and the harassment companytinued.
Accordingly, a direction was issued that for that purpose, custody of Antariksh may be given to the appellants on March 22, 2008.
A reply was filed by the appellants to the said application strongly objecting to the prayer made by the respondent.
On November 18, 1999, a male child Antariksh was born from the said wedlock.
On April 7, 2008, again the Court heard learned companynsel for the parties and felt that the matter should be heard finally on a number miscellaneous day and accordingly the Registry was directed to place the matter in the last week of April, 2008.
According to the allegation of the appellants, however, the respondent and his mother were number satisfied with the dowry and they started torturing Mithu for bringing more money from the appellants.
Antariksh was found in sick companydition from the residence of the respondent.
She was physically and mentally harassed.
It was stated that till then the custody of Antariksh would remain with maternal grand parents.
She became ill and was admitted to hospital by the appellants.
After due investigation of the case, on May 31, 2005, police submitted a charge sheet against the respondent and his mother and the criminal case is pending.
The Court also ascertained the wishes of Antariksh.
After she was cured, she returned to matrimonial home, but the harassment and cruelty persisted.
At that time, he was only of five years.
High Courts order Being aggrieved by the said order, the appellants approached the High Court.
The matter was adjourned to April 7, 2008.
90 for offences punishable under Sections 498A and 304, Indian Penal Code IPC .
She became seriously sick.
Immediately on the next day i.e. on April 10, 2004, appellant No.1 lodged First Information Report FIR against the respondent and his mother at Baranagar Police Station which was registered as Case No.
On March 31, 2008, the matter appeared on the board and the learned companynsel for the parties were heard.
The respondent and his mother had killed their daughter and a criminal case was pending and custody of Antariksh may number be given to the father respondent.
It was also observed that it would number be necessary to keep Antariksh present in the Court on the adjourned date.
He was admitted to St. Xaviers Collegiate School, Kolkata which is a well known and well reputed school in the State of West Bengal.
The Division Bench of the High Court, therefore, directed the appellants to handover child Antariksh in the custody of his father with visitation rights to the appellants.
Unfortunately, however, it did number so happen.
The Court also observed that let the child Antariksh remain present in the Court on that day at 10.30 a.m. The learned companynsel appearing for the appellants stated that the appellants would bear expenses of bringing Antariksh to the Court.
Earlier orders On March 7, 2008, when the matter was placed for admission hearing, numberice was issued by this Court and was made returnable on March 24, 2008.
Precisely that has number been done.
It was his maternal grand father appellant No.1, who maintained the child with utmost love and affection.
Appellants submissions The learned companynsel for the appellants strenuously companytended that both the Courts were wholly wrong in granting custody of minor Antariksh to the respondent.
The matter was, therefore, placed on board for final hearing and it was heard on April 29 30, 2008.
It was also stated that the matter was urgent and affidavit should be filed within a very short period.
The appellants thought that after the birth of son, torture on Mithu would be stopped.
In the circumstances, the Courts ought number to have passed an order directing the appellants to handover custody of Antariksh to the respondent.
On being cured, she returned to her matrimonial home, but the demand of dowry persisted and physical and mental cruelty did number stop.
It was expressly stated in the reply that custody of child Antariksh was given to them when he was found in ailing companydition in the house of the respondent.
Kabita Kundu are maternal grand father and grand mother respectively of minor Antariksh, father and mother of deceased Mithu Kundu and father in law and mother in law of Abhijit Kundu respondent herein.
Even after the birth of Antariksh, the difficulties did number companye to an end and as Mithu was unable to bring more money, as demanded by the respondent and his family members, she was killed and criminal proceedings were initiated against the respondent and his mother which are pending.
It was alleged that the respondent and his family members were after dowry and they had tortured Mithu since she companyld number bring sufficient amount of dowry.
The Court, therefore, observed that let such affidavit in reply be filed on or before April 2, 2008 and the affidavit in rejoinder be filed on or before April 4, 2008.
It was stated that the approach of the Courts below was technical and legalistic rather than pragmatic and realistic.
After the respondent was enlarged on bail, he filed an application under the Guardians and Wards Act, 1890 hereinafter referred to as 1890 Act praying for custody of Antariksh.
In the night of April 9, 2004, as alleged by the appellants, Mithu was brutally assaulted by the respondent and his mother and was brought to a hospital where she was declared dead.
It was stated that in such matters, paramount companysideration which is required to be borne in mind by the Court is welfare of the child and numberhing else.
K. THAKKER, J. Leave granted.
Coming to know about the ill health of Mithu, the appellants brought her to their house and got admitted her in a nursing home for medical treatment.
The learned companynsel for the respondent prayed for time to file affidavit in reply.
The present appeal is filed against the judgment and order passed by the Additional District Sessions Judge, Fast Track, 1st Court, Barasat on July 15, 2006 and companyfirmed by the High Court of Calcutta in F.M.A.T. No.
3185 of 2006 on December 7, 2007.
On April 18, 2004, custody of Antariksh was handed over to the appellants.
Factual matrix To understand the companytroversy in the appeal, it is appropriate if we narrate relevant facts of the case The appellants herein, i Nil Ratan Kundu and ii Smt.
