05.01.2012 C.O. No. 3786 of 2010 s.d. Mr. Ashoke Kr. Banerjee,

Mr. Sarajit Sen,

Mr. S.N. Sardar ..... for the petitioner. Mr. Sabyasachi Bhattacharjee,

Ms. Sohini Bhattacharjee ...for the opposite party. Heard the learned counsels for both the parties. Challenge is to the Order No.15 dated September 8, 2010 passed by the learned Additional District Judge, 1st Court, Hooghly, at Chinsurah in Matrimonial Suit No.533 of 2009 thereby disposing of two applications under Sections 36 & 38 of the Special Marriage Act, 1954.

More specifically, challenge is to the portion of the impugned order by which the learned Trial Judge directed that the custody of the son of the petitioner should be given to the mother.

The husband / petitioner herein instituted a suit for restitution of conjugal rights and the wife / opposite party herein has prayed for divorce in the said suit. The wife filed two applications under Sections 36 & 38 of the Special Marriage Act, 1954 and by the impugned order, two applications have been disposed of. The husband / petitioner herein has no grievance so far as the part of the order relating to alimony is concerned. His grievance is that the son should be given in his custody, while the custody of the daughter may remain with the wife / opposite party herein. Therefore, my findings should be confined only with regard to the custody of the minor son.

Admittedly, the husband is residing at Chinsurah and the wife is residing at Jaynagar, Dist. South 24 Parganas. The minor daughter is residing with the mother and the husband / petitioner herein has no grievance with respect to that portion of the order.

Admittedly, the son is now 8/9 years of age and is a student of Class III and he is reading in a good Government School at Chinsurah. From the papers filed by the husband relating to his education, it appears that the husband is rendering all the facilities for proper education of the son and the child is attending school accordingly. The learned Trial Judge has given the custody of the son to the mother on the ground that in consideration of the wholesome development of the child, he was inclined to give the custody of the son to the mother. Though, the learned Trial Judge has observed that good education and love of elderly is obviously needed for the child but he has concluded that nothing in the world can substitute is mother's company for him. Mr. Ashoke Kumar Banerjee, learned Senior Advocate appearing on behalf of the petitioner has submitted that as per materials on record, the husband / petitioner herein has his mother and sister at his house and they are able to look after the welfare of the son.

On the other hand, Ms. Sohini Bhattacharjee appearing on behalf of the wife / opposite party herein has contended that as per paragraph no.7 of the application under Section 38 of the Special Marriage Act, the husband is engaged in official duties and he spends most of the days in other activity of a particular political party etc. which would tell upon the moral of the innocent minor child of the wife. This ground, I hold, cannot be accepted because as per materials on record, the mother and the sister of the husband can look after the welfare of the son as well. Since, the child is of 8/9 years of age, it is the time to render proper education to the child for his all round development. So, I am of the view that the son should remain in the custody of the husband and if it is maintained, the proper care and education of the child would be taken by the husband and other members of his family. Of course, the wife / opposite party herein would get the right to visit the son at the convenient time and place, if possible once a week to be determined by the learned Trial Judge upon hearing both the sides on this matter. The oppsite party is at liberty to file an appropriate application before the learned Trial Judge to that effect. Accordingly, I am of the view that the impugned order relating to the custody of the son cannot be supported. This portion of the impugned order is set aside. Upon receipt of the copy of the order, the learned Trial Judge shall fix a date of hearing for settlement of the date of visit by the wife to the son at the convenient time and place, if possible, once a week and pass appropriate orders accordingly. Consequently, the order of alimony relating to the maintenance of the son is hereby set aside. The application under Section 38 of the Special Marriage Act, 1954 stands disposed of in the manner indicated above and the impugned order is modified accordingly.

This application is disposed of in the manner indicated above.

Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy, if applied for, be given to the learned counsel for the petitioner upon compliance of necessary formalities.

(Prasenjit Mandal. J.)