2 17.09.2025 17.09.2025 Ct. No. 11 rrc WPA (H) 31 of 2025 (Sanjay Kumar Shaw Vs. The State of West Bengal & Ors.) Mr. Haradhan Banerjee Mr. Amitava Pain Mr. Partha Pratimm Mukhopadhyay Ms. Monidipa Paul Mr. Suresh Kumar Sahoo …… For the petitioner Mr. Debabrata Chatterjee, Sr. Govt. Adv. Mr. Simanta Kabir ….. For the State respondents Mr. Chirantan Sarkar Mr. Sultan A. Mondal …… For the respondent no. 5 During infancy and impressionable age, the care and warmth of the parents are required for the welfare of the children. However, in the instant case, the parents of the children have failed to discharge their mutual obligations and are not even agreeable to set right their broken home for the sake of their children. Mr. Banerjee, learned senior advocate appearing for the petitioner submits that the petitioner married the respondent no. 5 on 11th December, 2013 and they were blessed with two daughters, who are presently aged about 6 years and 8 years respectively. Suddenly, on 8th February, 2024, the respondent no.5 left her matrimonial house, leaving the daughters in the custody of the petitioner. Thereafter, on 8th February, 2025, the daughters were forcibly taken away by the said respondent with the aid and assistance of one Santosh Shaw. Accordingly, the children, who were studying in Central Modern School, Baranagar, could not attend their classes thereafter. A complaint to that effect was also lodged but the police authorities did not take appropriate steps. Aggrieved thereby, the petitioner has approached this Court. He further submits that the respondent no. 5 is leading an adulterous life with Santosh Shaw and levelling false allegations, she went to the extent of lodging a criminal case against the petitioner and also filed a suit for divorce. The petitioner had been illegally deprived of the custody of his minor children and he is also unaware about the whereabouts of his children. Mr. Banerjee further submits that the respondent no. 5 has no independent income and as such, she is also not in a position to take care of the children and in view of such circumstances, directions needs to be issued directing the respondent no.5 to hand over the custody of the children to the petitioner, moreso when the petitioner had already made arrangements for a tenanted accommodation in which the respondent no. 5 can reside along with her children wherefrom it would be convenient 2 for the children to resume their studies in the Central Modern School. Mr. Sarkar, learned advocate appearing for the respondent no. 5, however, denies and disputes the contention of Mr. Banerjee and submits that the petitioner tortured the respondent no. 5 and as such, it became impossible for her to reside in the matrimonial house with her children. She was, in fact, forcibly driven out from her matrimonial house along with her children. A complaint was lodged immediately and on the basis of the same, Baranagar PS Case No. 40 of 2025 dated 8th February, 2025 was initiated and the same is still continuing. He further submits that the respondent no. 5 is the natural guardian of the children and in view of the minor age of the children, any direction issued to surrender the custody of the children in favour of the petitioner, would affect the welfare of the children. A matrimonial suit had already been preferred being Matrimonial Suit No. 449 of 2025 and the same is pending. The petitioner is also not paying any maintenance and an application under Section 125 of the Code of Criminal Procedure is pending. Mr. Chatterjee, learned senior Government advocate appearing for the State respondents submits that there is a severe matrimonial dispute between the parties and the children are presently residing with their mother at 3 Khardah. The allegations levelled against the police authorities are unfounded. In reply, Mr. Sarkar submits that the respondent no. 5 has already entered into a tenancy agreement and is presently residing with her children in the house of one Premlata Chowdhury, 21, P. K. Biswas Road, P.O. & P.S. – Khardah, Kolkata – 700 119, North 24-Parganas and she had also admitted her children in a school, namely, God’s Grace School at 60, Barrack Road, Barrackpore, Dist. – North 24-Parganas. The petitioner has also entered into a business and as such, it cannot be said that she does not have the means to look after the children. Placing reliance upon the averments made in paragraph 6 (vii) of the affidavit-in-opposition, Mr. Sarkar denies the contention of Mr. Banerjee that the respondent no. 5 left her matrimonial house leaving the children in the custody of the petitioner. Indisputably, there is a matrimonial dispute between the petitioner and the respondent no. 5 and a criminal proceeding is also pending. In view thereof, a subsisting acrimonious relationship between the petitioner and the respondent no. 5 cannot be ruled out. However, the whereabouts of the children are not unknown to the petitioner as it has been submitted on behalf of the respondent no. 5 that she is presently residing in a tenanted premises as stated above. 4 It is well settled that for determination of the issue of custody of the children, it is not the right of the parties but the welfare of the children which is of determinative significance. In child custody matters, ordinary remedy lies only under the Guardians and Wards Act. There are significant differences between the enquiry under the Act VIII and the exercise of powers by a writ Court which is summary in nature. The allegations and counter- allegations levelled by the parties, in our opinion, needs to be examined with reference to evidence. In view thereof, we are unable to accede to the petitioner’s prayer for issuance of necessary direction upon the private respondent to hand over the custody of the children to her. However, the petitioner being the father of the children cannot be deprived of his right of visitation. Accordingly, we direct that the petitioner would be at liberty to visit her children at the residence of the respondent no. 5 on every Saturday and Sunday of every month during the period from 5.00 p.m. to 8.00 p.m and during such visit, the respondent no. 5 shall ensure the comfort of the petitioner. In the event such visitation is denied by the respondent no. 5, the State respondents shall provide all necessary aid to the petitioner. The above directions shall be subject to any order that may be passed in custody proceedings, if initiated 5 before the appropriate forum by the parties. It is also made clear that the competent forum would decide the said proceedings without being influenced by the observations made in this order. With the above observations and directions, the writ petition being WPA (H) 31 of 2025 is disposed of. There shall, however, be no order as to costs. All parties shall act on the server copies of this order duly downloaded from the official website of this Court. (Reetobroto Kumar Mitra, J.) (Tapabrata Chakraborty, J.) 6