IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION – CIVIL APPEAL NO. 5099 OF 2007
Gaurav Nagpal …Appellant
Sumedha Nagpal ….Respondent
(With Criminal Appeal NO. 491 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a learned Single Judge of the
Punjab and Haryana High Court dismissing the appeal filed by the appellant.
Learned District Judge, Gurgaon, had allowed the application filed by the
respondent-wife under Section 6 of the Hindu Minority and Guardianship Act, 1956
(in short the ‘Act’) along with Section 25 of the Guardians and Wards Act, 1890 (in short `Guardian Act’).
2. Matrimonial discords are on the rise at an alarming rate. The sanctity
of marriages is under cloud, which in a great way affects the society at large.
Individuals can in no way be segregated from the society to which they belong.
The cultural heritage of a country is greatly influenced by a pattern of
behavior of individuals and more so in matters of matrimony.
Home can be a wonderful place to live. But continuous fights between the
partners of a marriage disturb the atmosphere at home and create havoc on the
members of a family. One does not need a mansion to lead a happy marital home.
The foundation of a happy home is love, sharing of joys and sorrows, and not in that sense bricks and concrete. There should be cementing of hearts and not cementing of floors and walls. Life is a series of awakening. The happiness which brings enduring worth to life is not the superficial happiness that is dependent on circumstances. Ultimately, in the fight between the partners, the victims more often than not are the children.
It is unfortunate that in their fight more often on account of egoism the
children suffer, more particularly when the child is a girl. It is not uncommon
to see that at the time of negotiation of marriage, the boy’s parents shy
away because the girl is from a broken family and/or the parents are divorced.
The child has practically no role in breaking of the marriage, but he or she
suffers. The marital discord sometimes reaches a stage where the parties are
unmindful of what psychological, mental and physical impact it has on children.
It is worse when there is a single child, be it a boy or a girl. The case at
hand is a classic example where the child has become the focus of controversy.
Bitter legal fights have been fought and the corridors of several courts including the Supreme Court have been travelled by the parties. Efforts have been made unsuccessfully to bring about conciliation between the parties. The best way to make children good said a learned author is to make them happy.
3. A brief reference to the factual aspects leaving out the maize of unnecessary facts would suffice.
The parties got married on 14.10.1996 and the child from their wedlock was born
on 15.11.1997. According to the appellant, respondent abandoned the child on
8.8.1999 but she filed a Habeas Corpus Petition before the Delhi High Court on
25.8.1999. The High Court dismissed the petition on the ground of territorial
jurisdiction. Respondent filed a Special Leave Petition against the High
Court’s order dated 14.1.2000 and also filed a Writ Petition under Article
32 of the Constitution of India, 1950 (in short the `Constitution’). This
Court permitted interim custody of the 20 months old child with the appellant.
The respondent filed a maintenance petition before the Delhi High Court and also
a petition for guardianship before a learned Additional District Judge, Jhajjar.
The same was later withdrawn and the petition was filed in the District Court,
Gurgaon. Appellant filed his reply opposing the application on the ground that
the respondent had deserted the child. By order dated 2.5.2002, learned Civil Judge dismissed the application for interim custody holding that any disturbance by changing the custody of the
child would traumatize him and shall not be conducive to the welfare of the
child and it would affect the mental balance of the child who had developed love
and affection for his father and his family members. A Revision Petition was
filed by the respondent before the High Court. The High Court granted the
visitation rights to the respondent by order 30.9.2002 but continued the interim
custody with the appellant. The visitation rights fixed by the Court were in the
(a) 9 a.m. to 5 p.m. on every last Saturday of the month.
(b) For a week in the aforesaid manner in summer vacations.
(c) One day in Dussehra holidays (9 a.m. to 5 p.m.
(d) One day in Diwali Holidays (9 a.m. to 5 p.m.).
A contempt petition was filed for violation of the terms by the appellant.
The learned District Judge, Gurgaon allowed the petition of the respondent and
granted custody of the child to the respondent. Appellant preferred an appeal
before the High Court against the order dated 6.1.2007. The High Court passed an
interim order staying the order of custody to the respondent but continued the
order with respect to visitation rights. By order dated 13.7.2007 the appeal
filed by the appellant was dismissed. Though the initial order of the High Court
was stayed, subsequently by order dated 29.10.2007 the visitation rights were continued.
4. According to the appellant, the order of the High Court is clearly wrong on
several counts. The order passed by the High Court dated 9.3.2005 convicting the
appellant for contempt of court has also been assailed in Criminal Appeal No.491
of 2006. The Trial Court came to hold that since the child had remained with the
appellant for a period of 7 years, he appears to have made every possible effort
to obtain the custody of a minor. The learned District Judge took note of the
fact that taking of the child from his father’s custody may adversely affect
the sentiments and upbringing of the child, but at the same time the child
should not be deprived the mother’s home.
5. Stand of the appellant before the High Court was that the court below
had not held that he suffers from any disability in his role as a father and,
therefore, there was no comprehensive reason for the Court to direct custody of
the child to be entrusted to the respondent. The fact that the respondent was
the mother cannot be the sole basis for allowing the petition. While considering
the prayer for the custody of the child, several factors including the
relationship between the parties and the minor are secondary. It was submitted
that the minor was abandoned when he was about one year and nine months old.
Thereafter, in the garb of seeking custody several rounds of litigation were unleashed.
6. With reference to Section 6 of the Act it was submitted that the
father was the legal guardian and the welfare of the minor child lies with the
appellant. He has a large income and resides in a joint family where the minor
is taken care of by the appellant, his mother, brother and brother’s wife
and his three nephews. The warmth of the joint family has led to an all round
development of the child and by taking him away from those surroundings can
deprive him of love and affection. The appellant lives in a posh locality and
the house is built on nearly 3000 sq. yards whereas the
respondent resides with her parents in a two-bed room flat. Apart from that the
appellant has a good educational background and since the child has been
residing for the last more than seven years with him, the courts should not have
directed handing over custody to the respondent.
7. It was further pointed out that the primary focus being the welfare of the
child, the respondent should have brought on record as to how with her meagre
income she would be able to provide good education to the child. It was pointed
out that the child is afraid of his mother and wrenching him from the custody of
the father would lead to irreparable mental trauma.
8. So far as the contempt proceedings were concerned it was submitted that the
appellant is not a criminal and though certain cases have been lodged against
him they are related to some technical violations.
9. The respondent’s stand on the other hand was that the appellant had
shifted his residence to Bahadurgarh by deception and fraud. From there the
child was snatched from her custody on 1.8.1999. Since that date she has
approached various courts to seek custody of the child and for redressal of her
grievances. The respondent got order relating to interim custody. For failure to
comply with the orders of interim custody, the appellant was convicted by the
High Court and sentenced to one month’s imprisonment and though the order of
sentence has been stayed, the order of conviction still continues to be in
force. The appellant’s conduct in disobeying the
orders passed by the courts discloses that he has no respect or any regard for
the rule of law. It was further submitted that the child’s welfare cannot be
weighed in terms of money, facilities, area of a house or the financial might of
either the father or the mother. It was pointed out that respondent had no
option but to reside with her parents and is a teacher in Salwan Public School.
Merely because she was residing with the parents cannot disqualify her from
looking after her child. She may not be as financially sound as the appellant,
but that alone cannot disentitle her from the custody of the child.
She has stated that she was drawing a salary of Rs.13,000/-p.m. (which is
likely to be substantially increased) and was receiving Rs.25,000/- as
maintenance pursuant to the order passed by the Delhi High Court and she can
look after the financial needs for educating the child. She resides in Gulabi
Bagh which is well located and surrounded and there is a park nearby. The colony
has 8-10 parks and it is a better location where the child can be well
developed. Therefore, it cannot be said that the respondent resides in an area
which is unsuitable to the minor child.
10. It is also pointed out that the appellant has no fixed residence. He
shifted from Delhi to Bahadurgarh and then Gurgaon and back to Delhi in a house
in Sainik farm where the appellant claims to reside. Same is owned by his
brother. It has been a deliberate attempt to poison the mind of the child.
Negative facts have been fed into the child’s mind against the respondent.
It was further submitted that if sufficient time is given the child would
overcome any tutored prejudice. Though, there was a claim that the relatives
would provide healthy environment to the child, none of them stepped into the
witness box and affidavits filed much later cannot be a
substitute for the evidence in Court. The High Court took note of Section 13 of
the Act which is the foundation for the custody of the child. The welfare of the
minor is of paramount consideration.
The High Court looking into the materials placed observed as follows:
“In view of the facts, noticed herein before, the question that exercises
this Court’s mind is should the child be permitted to stay with a father,
who inculcates fear and apprehension in the mind of minor, against his mother
and thwarts court orders with impunity. The answer to the above questions, in my
pinion, must be in the negative.
The appellant, cannot wish away his role, in the minor harboring such an
irrational fear towards the mother. I am conscious of the fact that directing
the custody of the child to the respondent, may result in a degree of trauma.
However, the daily trauma the child appears to undergo while being tutored
against his mother would be far in excess of the trauma likely to be faced while
entrusting to the respondent. The minor child must be allowed to grow up with a
healthy regard for both parents. A parent in this case, the appellant, who
poisons the minor’s mind against the other parent cannot possibly be stated
to act for the welfare of the minor.”
11. It is submitted that the High Court was not oblivious of the financial
status of the respondent. The High Court also found that large area of
accommodation and financial affluence cannot be a determinative factor.
Therefore, the High Court did not find any scope for interference with the order of the court below.
12. In support of the appeal, learned counsel for the appellant re-iterated the
stand taken before the High Court. It was additionally submitted that the
child’s reluctance to go with the mother should have been duly considered by
the High Court. Apparently, that has not been done.
13. Strong reliance is placed on a decision of this Court in Mausami Moitra
Ganguli v. Jayant Ganguli (JT 2008 (6) SC 634) wherein this Court on 12th May,
2008 dismissed the mother’s appeal, according to appellant, on identical facts.
14. The Respondent, who appeared in person, highlighted the stands taken by her
before the learned District Judge and the High Court. The main plank of appellant’s argument is to continue custody with the father.
The appellant has managed to retain the custody by flouting the order passed by
this Court. It is pointed out by the respondent that for flouting the orders of
the Court the appellant has been convicted for contempt of court which is the
subject matter of challenge in criminal appeal. It was not the first instance
when the appellant flouted the order. It is pointed out that the factual
scenario in Mausami Moitra’s case (supra) was entirely different. In that
case, courts below had analysed the material to conclude that it would be
desirable to give custody to the father. The factual scenario is entirely different here.
15. It is to be noticed as done at the threshold that in the present dispute the child has become the victim.
16. It is pointed out by the respondent that she was not aware that the
appellant was a divorcee. The first wife was ill treated by the appellant and
his relatives on account of alleged meager dowry. She was eventually ousted from
the matrimonial home along with a minor child. Since the appellant demanded
custody of the child and threatened the respondent, information was lodged at
the Police Station. On 1.8.1999 while the respondent was attending to household
chores, the appellant whisked away their minor child and sent him to some
unknown place at Delhi. The respondent was bundled into a car and kept in illegal confinement at the house of one Sh. Bal Kishan Dang from where she escaped on 8.8.1999. She sent
telegrams to various authorities and a formal complaint was lodged with the
Police Station, Sarai Rohilla alleging wrongful confinement and kidnapping of
the child. In the meanwhile, the respondent’s father lodged a complaint with
the police at Bahadurgarh. The appellant was arrested and produced before the
Court at Bahadurgarh. An application was filed before the Sub-Divisional
Judicial Magistrate, Bahadurgarh, requesting the court to hold an inquiry, as to
the whereabouts of the minor child. The Magistrate passed an order directing the
appellant to produce the child on the next date of hearing. However, as the
respondent could not reach the court in time, the Magistrate granted bail to the
appellant and declined the prayer for
production of the minor child. Thereafter, the respondent, filed an application
for issuance of a writ in the nature of Habeas Corpus before the High Court at
Delhi. Despite issuance of notice, the appellant failed to produce the child.
Eventually on 11.1.2000, the petition was dismissed for want of territorial
jurisdiction. The respondent, thereafter, filed a Special Leave Petition before
this Court, as also a writ petition under Article 32 of the Constitution. Both
these petitions were dismissed by this Court, directing the respondent, to avail
her remedy before the Guardian Court.
The respondent thereafter filed a petition under Section 6 of the Act, praying
for the custody of the minor child. The respondent, prayed before the Trial
Court that as she was the mother of a minor child and as she did not suffer from
any disability, the appellant be directed to hand over the custody of the minor
child. It was averred in the petition that though the appellant claimed to be
the owner of various companies, he had committed various frauds.
17. The appellant played fraud with the respondent by concealing the fact
that he was earlier married to one Alka Nagpal and his marriage broke as he is
supposed to have similarly tortured and harassed his wife as was made out to the
respondent. It is the respondent’s case that as she was unable to bear the
physical and mental agony, Alka Nagpal committed suicide within six months of
her marriage. It is also pointed out that the criminal cases involving offences
punishable under Sections 498A, 406, 323, 506, 343 and 109 IPC are pending in
the CBI Court, Patiala against the appellant and his family members. It is also
pointed out that the child was shifted from one school to another at various
places in Haryana and Delhi.
18. It was pointed out that the conduct of the appellant was noted by the
Local Commissioner of Police in his report on 10.10.2003 who committed repeated
defaults in bringing the child on various dates. The High Court noted that fact
and came to a conclusion that the appellant had willfully disobeyed the orders
of this Court and had poisoned the mind of the child against the mother. It was
further noted that the child could only meet the mother with the help of a duty Magistrate.
19. We shall first deal with law relating to custody in various countries.English Law
20. In Halsbury’s Laws of England, Fourth Edition, Vol. 24, para 511 at page 217 it has been stated;
“Where in any proceedings before any court the custody or upbringing of a
minor is in question, then, in deciding that question, the court must regard the
minor’s welfare as the first and paramount consideration, and may not take
into consideration whether from any other point of view the father’s claim
in respect of that custody or upbringing is superior to that of the mother, or
the mother’s claim is superior to that of the father.” (emphasis supplied)
It has also been stated that if the minor is of any age to exercise a choice,the court will take his wishes into consideration. (para 534; page 229).
21. Sometimes, a writ of habeas corpus is sought for custody of a minor
child. In such cases also, the paramount consideration which is required to be
kept in view by a writ-Court is `welfare of the child’.
22. In Habeas Corpus, Vol. I, page 581, Bailey states;
“The reputation of the father may be as stainless as crystal; he may not
be afflicted with the slightest mental, moral or physical disqualifications from
superintending the general welfare of the infant; the mother may have been
separated from him without the shadow of a pretence of justification; and yet the interests of the child may imperatively demand the denial of the father’s right and its continuance
with the mother. The tender age and precarious state of its health make the
vigilance of the mother indispensable to its proper care; for, not doubting that
paternal anxiety would seek for and obtain the best substitute which could be
procured yet every instinct of humanity unerringly proclaims that no substitute
can supply the place of her whose watchfulness over the sleeping cradle, or
waking moments of her offspring, is prompted by deeper and holier feeling than
the most liberal allowance of nurses’ wages could possibly stimulate.”
23. It is further observed that an incidental aspect, which has a bearing
on the question, may also be adverted to. In determining whether it will be for
the best interests of a child to grant its custody to the father or mother, the
Court may properly consult the child, if it has sufficient judgment.
24. In Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J.observed;
The dominant matter for the consideration of the Court is the welfare of the
child. But the welfare of the child is not to be measured by money only nor
merely physical comfort. The word `welfare’ must be taken in its widest
sense. The moral or religious welfare of the child must be considered as well as
its physical well-being. Nor can the tie of affection be disregarded. (emphasis supplied) …..American Law
25. Law in the United States is also not different. In American Jurisprudence, Second Edition, Vol. 39; para 31; page 34, it is stated;
“As a rule, in the selection of a guardian of a minor, the best interest
of the child is the paramount consideration, to which even the rights of parents
must sometimes yield”. (emphasis supplied)
In para 148; pp.280-81; it is stated;
“Generally, where the writ of habeas corpus is prosecuted for the purpose
of determining the right to custody of a child, the controversy does not involve
the question of personal freedom, because an infant is presumed to be in the
custody of someone until it attains its majority. The Court, in passing on the
writ in a child custody case, deals with a matter of an equitable nature, it is
not bound by any mere legal right of parent or guardian, but is to give his or
her claim to the custody of the child due weight as a claim founded on human
nature and generally equitable and just. Therefore, these cases are decided, not
on the legal right of the petitioner to be relieved from unlawful imprisonment
or detention, as in the case of an adult, but on the Court’s view of the
best interests of those whose welfare requires that they be in custody of one
person or another; and hence, a court is not bound to deliver a child into the
custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time
appears to require.
In short, the child’s welfare is the supreme consideration, irrespective of
the rights and wrongs of its contending parents, although the natural rights of
the parents are entitled to consideration.
An application by a parent, through the medium of a habeas corpus proceeding,
for custody of a child is addressed to the discretion of the court, and custody
may be withheld from the parent where it is made clearly to appear that by reason of
unfitness for the trust or of other sufficient causes the permanent interests
of the child would be sacrificed by a change of custody. In determining whether
it will be for the best interest of a child to award its custody to the father
or mother, the Court may properly consult the child, if it has sufficient judgment”. (emphasis supplied)
26. In Howarth v. Northcott, 152 Conn 460 : 208 A 2nd 540 : 17 ALR 3rd 758;it was stated;
“In habeas corpus proceedings to determine child custody, the jurisdiction
exercised by the Court rests in such cases on its inherent equitable powers and
exerts the force of the State, as parens patriae, for the protection of its
infant ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity”.
It was further observed;
“The employment of the forms of habeas corpus in a child custody case is
not for the purpose of testing the legality of a confinement or restraint as
contemplated by the ancient common law writ, or by statute, but the primary
purpose is to furnish a means by which the court, in the exercise of its
judicial discretion, may determine what is best for the welfare of the child,
and the decision is reached by a consideration of the equities involved in the
welfare of the child, against which the legal rights of no one, including the
parents, are allowed to militate”. (emphasis supplied)
27. It was also indicated that ordinarily, the basis for issuance of a writ
of habeas corpus is an illegal detention; but in the case of such a writ sued
out for the detention of a child, the law is concerned not so much with the
illegality of the detention as with the welfare of the child.
28. The legal position in India follows the above doctrine. There are
various statutes which give legislative recognition to these well-established
principles. It would be appropriate if we examine some of the statutes dealing
with the situation. Guardians Act, consolidates and amends the law relating to
guardians and wards. Section 4 of the said Act defines “minor” as a
person who has not attained the age of majority. “Guardian” means a
person having the care of the person of a minor or of his property, or of both
his person and property. “Ward” is defined as a minor for whose person
or property or both, there is a guardian. Chapter II (Sections 5 to 19 of
Guardians Act) relates to appointment and declaration of guardians. Section
7 thereof deals with `power of the Court to make order as to guardianship’ and reads as under:
7. Power of the Court to make order as to guardianship.-
(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made–
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has
not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or
appointed or declared by the Court, an order under this section appointing or
declaring another person to be guardian in his stead shall not be made until the
powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
29. Section 8 of the Guardians Act enumerates persons entitled to apply for
an order as to guardianship. Section 9 empowers the Court having jurisdiction to
entertain an application for guardianship. Sections 10 to 16 deal with procedure
and powers of Court. Section 17 is another material provision and may be reproduced;
“17. Matters to be considered by the Court in appointing guardian.-
(1) In appointing or declaring the guardian of a minor, the Court shall,
subject to the provisions of this section, be guided by what, consistently with
the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall
have regard to the age, sex and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin to the minor, the
wishes, if any, of a deceased parent, and any existing or previous relations of
the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(5) The Court shall not appoint or declare any person to be a guardian against
his will. (emphasis supplied)
30. Section 19 prohibits the Court from appointing guardians in certain cases.
Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities of guardians.
31. The Act is another equally important statute relating to minority
and guardianship among Hindus. Section 4 defines “minor” as a person
who has not completed the age of eighteen years. “Guardian” means a
person having the care of the person of a minor or of his property or of both
his persons and property, and inter alia includes a natural guardian. Section 2
of the Act declares that the provisions of the Act shall be in addition to, and not in derogation of 1890 Act.
32. Section 6 enacts as to who can be said to be a natural guardian. It reads thus;
6. Natural guardians of a Hindu Minor.–The natural guardians of a
Hindu minor, in respect of the minor’s person as well as in respect of the
minor’s property (excluding his or her undivided interest in joint family property), are–
(a) in the case of a boy or an unmarried girl–the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl–the mother, and after her, the father.
(c) in the case of a married girl–the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.–In this section, the expressions “father” and “mother” do not include a step-father and a step- mother.
33. Section 8 enumerates powers of natural guardian. Section 13 is extremely important provision and deals with welfare of a minor. The same may be quoted in extenso;
13. Welfare of minor to be paramount consideration.
(1) In the appointment or declaration of any person as guardian of a Hindu
minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No, person shall be entitled to the guardianship by virtue of the
provisions of this Act or of any law relating to guardianship in marriage among
Hindus, if the court is of opinion that his or her guardianship will not be for
the welfare of the minor.(emphasis supplied)
34. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children
and declares that in any proceeding under the said Act, the Court could make,
from time to time, such interim orders as it might deem just and proper with
respect to custody, maintenance and education of minor children, consistently
with their wishes, wherever possible.
35. The principles in relation to the custody of a minor child are well
settled. In determining the question as to who should be given custody of a
minor child, the paramount consideration is the `welfare of the child’ and
not rights of the parents under a statute for the time being in force.
36. The aforesaid statutory provisions came up for consideration before
Courts in India in several cases. Let us deal with few decisions wherein the
courts have applied the principles relating to grant of custody of minor
children by taking into account their interest and well-being as paramount consideration.
37. In Saraswathibai Shripad v. Shripad Vasanji, ILR 1941 Bom 455 : AIR 1941 Bom 103; the High Court of Bombay stated;
“It is not the welfare of the father, nor the welfare of the
mother that is the paramount consideration for the Court. It is the welfare of
the minor and the minor alone which is the paramount consideration.” (emphasis supplied)
38. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court
held that object and purpose of 1890 Act is not merely physical custody of the
minor but due protection of the rights of ward’s health, maintenance and
education. The power and duty of the Court under the Act is the welfare of
minor. In considering the question of welfare of minor, due regard has of course
to be given to the right of the father as natural guardian but if the custody of
the father cannot promote the welfare of the children, he may be refused such guardianship.
39. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982)
2 SCC 544, this Court reiterated that the only consideration of the Court in
deciding the question of custody of minor should be the welfare and interest of
the minor. And it is the special duty and responsibility of the Court. Mature
thinking is indeed necessary in such situation to decide what will ensure to the
benefit and welfare of the child.
40. Merely because there is no defect in his personal care and his
attachment for his children–which every normal parent has, he would not be
granted custody. Simply because the father loves his children and is not shown
to be otherwise undesirable does not necessarily lead to the conclusion that the
welfare of the children would be better promoted by granting their custody to
him. Children are not mere chattels nor are they toys for their parents.
Absolute right of parents over the destinies and the lives of their children, in
the modern changed social conditions must yield to the considerations of their
welfare as human beings so that they may
grow up in a normal balanced manner to be useful members of the society and the
guardian court in case of a dispute between the mother and the father, is
expected to strike a just and proper balance between the requirements of welfare
of the minor children and the rights of their respective parents over them.
41. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC
698, this Court held that Section 6 of the Act constitutes father as a natural
guardian of a minor son. But that provision cannot supersede the paramount
consideration as to what is conducive to the welfare of the minor. [See also
Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42; Chandrakala
Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6].
42. When the court is confronted with conflicting demands made by the
parents, each time it has to justify the demands. The Court has not only to look
at the issue on legalistic basis; in such matters human angles are relevant for
deciding those issues. The court then does not give emphasis on what the parties
say, it has to exercise a jurisdiction which is aimed at the welfare of the
minor. As observed recently in Mousami Moitra Ganguli’s case (supra), the
Court has to due weightage to the child’s ordinary contentment, health,
education, intellectual development and favourable surroundings but over and
above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
43. The word `welfare’ used in Section 13 of the Act has to be construed
literally and must be taken in its widest sense. The moral and ethical welfare
of the child must also weigh with the Court as well as its physical well being.
Though the provisions of the special statutes which govern the rights of the
parents or guardians may be taken into consideration, there is nothing which can
stand in the way of the Court exercising its’ parents patriae jurisdiction
arising in such cases.
44. The trump card in appellants’ argument is that the child is living
since long with the father. The argument is attractive. But the same overlooks a
very significant factor. By flouting various orders, leading even to initiation
of contempt proceedings, the appellant has managed to keep custody of the child.
He can not be a beneficiary of his own wrongs. The High Court has referred to
these aspects in detail in the impugned judgments.
45. The conclusions arrived at and reasons indicated by the High Court to grant
custody to the mother does not in our view suffer from any infirmity. It is true
that taking the child out of the father’s custody may cause some problems,
but that is bound to be neutralized.
46. Learned counsel for the appellant submitted that the child’s education
is of paramount importance and the father is spending good amount of money for
providing him excellent education, and the mother does not have the financial
affluence as the appellant claims to have. But that can be taken care of if
father is asked to pay the educational expenses of the child in addition to the
maintenance being paid to the respondent. But at the same time it cannot be
overlooked that the father needs to have visitation rights of the child.
47. In partial modification of the order passed by the District Judge and the
High Court, we direct that the visitation rights shall be in the following terms:
(1) During long holidays/vacations covering more than two weeks the child
will be allowed to be in the company of the father for a period of seven days.
(2) The period shall be fixed by the father after due intimation to the
mother who shall permit the child to go with the father for the aforesaid period.
(3) For twice every month preferably on Saturday or Sunday or a festival day,
mother shall allow the child to visit the father from morning to evening. Father
shall take the child and leave him back at the mother’s place on such days.
48. The appeal is dismissed subject to aforesaid modifications. Costs fixed at Rs.25,000/-. CRIMINAL APPEAL NO. 491 OF 2006
49. Though we find that the order of the High Court does not suffer from
any infirmity but taking into account the fact that we have dismissed the
connected Civil appeal relating to the custody of the child, while upholding the
finding of guilt for disobeying the Court’s order and committing contempt of
Court, we restrict the sentence to the period already undergone.
50. Before saying omega, we propose to make some general observations. It
is a disturbing phenomenon that large number of cases are flooding the courts
relating to divorce or judicial separation. An apprehension is gaining ground
that the provisions relating to divorce in the Hindu Marriage Act, 1950 (in
short the `Marriage Act’) has led to such a situation. In other words, the
feeling is that the statute is facilitating breaking of homes rather than saving
them. This may be too wide a view because actions are suspect.
But that does not make the section invalid. Actions may be bad, but not the
Section. The provisions relating to divorce categories situations in which a
decree for divorce can be sought for. Merely because such a course is available
to be adopted, should not normally provide incentive to persons to seek divorce,
unless the marriage has irretrievably broken. Effort should be to bring about
conciliation to bridge the communication gap which lead to such undesirable
proceedings. People rushing to courts for breaking up of marriage should come as
a last resort, and unless it has an inevitable result, courts should try to
bring about conciliation. The emphasis should be on saving marriage and not
breaking it. As noted above, this is more important in cases where the children bear the brunt of dissolution of marriage.
One must not lose faith in humanity. It is an ocean; if a few drops of the
ocean are dirty, the ocean does not become dirty. If nothing ever went wrong in
one’s life, he or she would never have a chance to grow stronger.
One should never forget that today well lived makes every yesterday a dream of
happiness and tomorrow a vision of hope. Marital happiness depends upon mutual
trust, respect and understanding. A home should not be an arena for ego clashes
and misunderstandings. There should be physical and mental union. Marriage is
something, Ibsen said in “The League of Youth” you have to give your
whole mind to. If marriages are made in Heaven as Tennyson said in Ayloner’s
Field, why make matrimonial home hell is a big question.
51. The appeals are dismissed subject to the aforesaid modifications.
(Dr. ARIJIT PASAYAT)
New Delhi, November 19, 2008