KOLKATA: A child of an estranged couple who lives with his father for five years cannot be “planted elsewhere” even if the educational qualification of the father is lower than that of the mother, the Calcutta HC held on Tuesday. The mother, who was recently awarded custody of the child by the lower court, has a master’s degree in music. She runs a music school and is also a private teacher. The father, whose claim for custody of the 8-year-old boy was upheld by the Supreme Court, is a university student 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 lower court judge that he wanted to stay with both parents. As the couple had filed for restoration of conjugal rights several times during the custody battle, a Supreme Court bench of Justices Sabyasachi Bhattacharya and Supratim Bhattacharya on Tuesday observed: “It is clear that all is not lost yet and there is ample scope for the parties to reconcile their marital disputes, as well as the opportunity for the parties to remain together as a couple by eliminating their personal differences, which will be of utmost benefit to the child in the final bout.” Count.
“ The council referred the couple for mediation, under the supervision of the Calcutta HC Mediation Committee. The committee requested the involvement of a psychiatrist in the mediation. The court of first instance had indicated in its last order that the father earned more than the mother, but it granted custody to the mother on the basis that she was more educated. The judge noted that the child’s upbringing would be affected if he was deprived of his mother’s love. On the father’s appeal against the order of the lower court, the bench on Tuesday observed: “The finding reached by the trial judge is that any separation of the minor from his mother would cause an abrasion in the mind of the minor, who is eight years of age. This abrasion occurred five years ago; from the age of three to eight, he was residing with his father… He has been living with his father for five years; and now we cannot pick him up and plant him somewhere else.”
“ The bench also noted that “the trial judge was influenced more by personal inclinations and views than by the facts of the case.” The couple separated in 2021, when the child was only three years old. The man claimed that his wife left to live at her parents’ house, while the woman claimed that her husband kicked her out of the house. The division council said that no evidence was presented to prove that the child’s education was affected during the five years he spent with his father. Rather, it was noted that the child was receiving private lessons from his aunt and two private teachers. The mother was granted visitation rights by the Supreme Court.
