Jan. 10: Calcutta High Court today granted the interim custody of two children to their mother.
The interim order came less than a year after a Norway court sent the children to India on the condition that they would live with their uncle.
Norwegian child welfare services, who had taken away the children and put them in foster care citing "fear of possible violence against the children and lack of adequate parental care", had allowed them to return to India last April after the parents signed an agreement giving the children's custody to their paternal uncle.
The Indian embassy in Oslo had notarised the agreement between the parents, Anurup and Sagarika Bhattacharya, and the uncle, Arunabhas Bhattacharya, that the Norwegian court's verdict ' that Arunabhas would get custody ' would be honoured.
Today, Justice Dipankar Dutta of Calcutta High Court said: "As the mother is the natural guardian, the court is handing over the custody of the children to the mother. Both the parties will submit affidavits and the court will hear the case in March."
The judge added: "The uncle of the children, who had been taking their care since April last, also has the liberty to meet them once in a week. The meeting will take place in the chamber of the mother's lawyer on Saturdays."
Amid a public uproar after a Norwegian court sent the children to a childcare unit, the Indian government had taken up the matter with Norway, where the family had been living for several years.
When the parents moved court in that country, they were told that custody could be given to a near relation. Anurup's brother Arunabhas then sought permission to keep the children with him in Kulti, near Asansol, in Burdwan. Accordingly, the Norway court handed them over to him in April.
That the Bhattacharyas had agreed to allow Arunabhas custody of the kids and the Indian embassy had notarised the agreement was mentioned in Parliament by Preneet Kaur, the minister of state for external affairs, on March 29, 2012.
"On March 23, 2012, the parents and the paternal uncle signed an agreement which was notarised by the Embassy of India. This Agreement has been presented to the CWS (the child welfare service in Norway) to enable it to submit it to the Court on the date of hearing," she said.
Sagarika, who is now separated from her husband and lives in Birati, said after the judgment: "I am very happy today. My husband (Anurup) does not stay with me. But for the sake of the children's future, I will not mind staying with him provided he returns to Calcutta," she said.
By contrast, in a similar case involving the honouring of agreements, two Italian marines accused of killing two Kerala fishermen returned to Kochi recently to face trial after they were allowed by an Indian court to go home for Christmas.
A government source said in Delhi: "We have no authority over the children. It was their parents who went for an agreement which was notarised by the embassy."
Asked about today's ruling, Bikash Bhattacharya, a senior advocate of Calcutta High Court, said: "I have not seen the agreement but according to Indian law, it is the mother who is the natural guardian of a child whose age is below 14. Since the mother is staying in Calcutta without her husband and is a citizen of India, the country's law will prevail. In these types of cases, the high court can hand over the custody of the child to his/her mother."
Jai Khanna
Hill Krishnan
Papa C J
