Custody to reMarried women

Supreme Court of India
CASE NO.:Appeal (civil) 5131 of 2006

PETITIONER:Lekha
RESPONDENT:P. Anil Kumar

DATE OF JUDGMENT: 21/11/2006

BENCH:Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT:J U D G M E N T(Arising out of SLP (C) Nos. 19687/2005)

Leave granted.

The present appeal is directed against the order of the
High Court of Kerala allowing matrimonial appeal for the
custody of the child of the respondent by reversing the finding
of fact arrived at by the trial Court. The trial Court, after
considering the evidence on record and interviewing the child,
came to the conclusion that for the welfare of the child the
custody should be given to the mother and dismissed the
original petition of the respondent-father filed under the
Guardians and Wards Act holding that he is not entitled for
the custody of the child. On appeal, the High Court reversed
the finding of the trial Court and directed to give the custody
of the child to the father without interviewing the child. The
High Court also permitted the respondent to take the child to Gulf.

BACKGROUND FACTS:
The marriage between the appellant and the respondent
was solemnized on 31.01.1994 as per Hindu religious rites
and customs. Out of the said wedlock, a son, namely, Rohit
Vishnu was born and he is 12 years old now. At the time of
marriage, the respondent was employed abroad. After
marriage the appellant and the respondent lived together for
2= months and thereafter they lived separately because of the
misunderstanding between them. Since the harassment and
cruelty of the respondent crossed the extreme extent, the
appellant was compelled to file a petition for divorce on the
ground of cruelty. The respondent filed a petition for
restitution of conjugal rights against the appellant.

Thereafter, the respondent filed an original petition under the
Guardians and Wards Act for the custody of the 11 years old
minor child. The main allegation of the respondent was that
the appellant was having illegal intimacy with another person.
The second contention was that if the child is in the company
of the appellant, it would affect the education of the child. The
respondent also contended that he is financially better than
the appellant and hence the custody of the child be given to
him. The appellant defended the matter and filed a written
statement denying all the allegations.

In the meantime, the Subordinate Judge passed an ex-
parte decree for divorce in favour of the appellant and the
petition for restitution of conjugal rights filed by the
respondent was dismissed for default.

After considering the oral evidence adduced by the
parties and examining the documentary evidence and also
interviewing the child, the trial Court came to the conclusion
that for the welfare of the child the custody should be given to
the mother and dismissed the original petition of the father
filed under the Guardians and Wards Act.

Against the order of the trial Court, the respondent filed
an appeal before the High Court of Kerala. The contention of
the respondent was that contrary to the deposition made by
the appellant before the trial Court that she would not re-
marry, immediately after the judgment of the petition filed
under the Guardians and Wards Act, she remarried. It is,
therefore, contended that the continued custody of the child
with the appellant would be detrimental to the interest,
progress and welfare of the child.

The High Court, without giving an opportunity to express
the willingness of the child, allowed the appeal only on the
ground of remarriage of the appellant/mother of the child.
The High Court also held that the respondent-father is a
businessman in Saudi Arabia and the father is more apt and
suitable to protect the interest of the minor child and also in
imparting education to the required standard of the child.
Aggrieved against the order passed by the High Court, the
appellant has preferred the above civil appeal. On
21.09.2005, the status quo was ordered by this Court.
We heard Mr. P.S. Narasimha, learned counsel for the
appellant and Mr. C.S.Rajan, learned senior counsel for the
respondent. We have also interviewed the child in our
chamber for about an hour.

Mr. P.S. Narasimha, learned counsel for the appellant
submitted that the order of the High Court is unjustifiable
because before passing an order, the High Court ought to have
enquired about the mental make-up of the child to ascertain
whether he is willing to go with his father. According to him,
the minor child is highly talented and the documents
produced by the appellant before the lower forum would
clearly show that he is extraordinary in his studies. He
further submitted that the trial Court personally interviewed
the child. He categorically stated that he wants to stay with
his mother. He stated that the finding of the High Court that
before the trial Court, the appellant unequivocally deposed
that she would not re-marry for the purpose of looking after
the minor child is totally wrong. Arguing further, he
submitted that it is true that the appellant deposed that she
has no intention to remarry and that it does not mean that the
appellant gave an undertaking that she would continue to be
unmarried in her whole life. Concluding his argument Mr.
Narasimha submitted that considering her age and for the
welfare of her minor child the appellant got remarried and in
the circumstances that mother also has land and properties in
her name, the finding of the High Court is only on the basis of
an oral submission and not from any documentary evidence,
hence the order of the High Court is liable to be set aside.
Mr. C.S. Rajan, learned senior counsel for the
respondent-husband submitted that the welfare of the minor
child is the only interest in the remaining life of the
respondent for which he is prepared to take any pain and task
in life. The respondent being a natural guardian of the child,
the boy who is 12 years old will find it difficult to adjust with
his step-father and mother who now has a baby with her
second husband. Mr. Rajan further submitted that the
appellant in her statement before the Addl. District Judge had
stated that she would not remarry in life and would look after
the child, which fact has been specifically stated in the
judgment of the trial Court and in the High Court. But quite
contrary to the statement, the appellant immediately after the
judgment of the District Judge remarried on 24.06.2005. It is
further submitted that the appellant is now staying in her
present husbands house in Varkala which is about 150 kms.
away from her parental house and, therefore, the appellant
will not be in a position to take full care of the minor child in
her changed circumstances. Concluding his arguments, he
submitted that the respondent has purchased a car and
arranged the driver for the convenience of the child from the
house of the respondent to the school and back and that he
can also engage good teachers and tutors for giving special
attention to the studies of the child. It is further submitted
that the respondents mother who is alone at home is very
healthy and active and can look after the child and that
besides his elder sister is also staying near his house in Kerala
and that the distance of the present school where the child is
studying is only 15 kms. from his house. In the above
circumstances, he prayed that the civil appeal lacks question
of law to be decided by this Court and deserves dismissal.
On 16.11.2006, we interviewed the boy in our chambers.
The boy who is now 12 years old appears to be a bright boy.
He understands the questions put to him and gave apt replies.
At the time of interview, it was ascertained that he had no ill-
will or hatred towards his father but at the same time, he is
not interested in living with the father permanently as he had
expressed his willingness to stay with his mother. The minor
further stated that if he is allowed to stay with his mother,
that is better for his education and she will teach him
properly. He also said that the appellant (mother) treats him
and the new born baby with same love and affection and there
is no discriminatory treatment. He also further said that his
step-father also likes him very much and that he, therefore,
would prefer to live with his mother which will benefit his
education. The boy also said about the re-marriage of the
mother and the birth of the child for his mother. At the time
of interview, the boy unequivocally deposed that he would
continue to live with his mother since the mother is looking
after him with all her love and affection.

We have carefully perused the orders passed by both the
lower Courts and of the High Court. The High Court, before
setting aside the concurrent finding passed by the courts
below, ought to have interviewed the child before coming to a
conclusion that for the welfare of the child the custody should
be given to the father. Mr. Rajan submitted that since the
mother has remarried, she would not devote her time for the
welfare of the boy and that in the interest of the child, the
child should be given custody only to the father who is not
only healthy but also have other facilities to look after the
child, his education and welfare.

We are of the opinion that the remarriage of the mother
cannot be taken as a ground for not granting the custody of
the child to the mother. The paramount consideration should
be given to the welfare of the child. As already noticed, at the
interview, the boy has expressed his willingness and desire to
live only with his mother and was admitted by him that the
mother will provide him good education. The mother is also
drawing pension of Rs.6,000/- p.m. and also having land and
properties in her name. When the boy says he prefers to live
with his mother, we are of the view that it will be beneficial for
the boy and his education for a better future. The High Court,
in our opinion, erred in allowing the appeal on the ground of
remarriage of the appellant without considering the other
aspects of the matter. It is a matter of custody of the child
and the paramount consideration should be the welfare of the
child. It is not in dispute the boy is living with his mother for
the last several years and the separation at this stage will
affect the mental condition and the education of the child and
considering that the child himself attaches importance to his
education if the custody is to be given to the father will now
affect his academic brilliance and future.

The High Court, in our opinion, ought to have seen that
the re-marriage cannot be taken as a ground for giving
custody of the child. There is also no finding by the High
Court that the remarriage has adversely affected the mental
condition of the minor child.

Shaik Moidin v. Kunhadevi, AIR 1929 Madras 33 (Full
Bench). The above was a case of a father, a motor driver,
applying for writ of Habeas Corpus to get custody of his 7 year
aged child. Nobody was available in his house to look after
such child. The Full Bench held that the Court has to look to
an application under Habeas Corpus in the interest of the
child as being paramount. The Court held that prima- facie in
the eye of the law, the father is the natural guardian and
custodian of the person of his child. But it has been the law
for a very long time both in England and in this country that
what a Court has to look to on applications under habeas
corpus is the interest of the child as being paramount.
In Samuel Stephen Richard v. Stella Richard AIR
1955 Mad 451, the High Court in deciding the question of
custody held as follows:-
In deciding the question of custody, the welfare of the minor
is the paramount consideration and the fact that the father
is the natural guardian would not ipso facto entitle him to
custody. The principal considerations or tests which have
been laid down under section 17, in order to secure this
welfare are equally applicable in considering the welfare of
the minor under section 25.

The application of these tests casts an arduous duty
on the court. Amongst the many and multifarious duties that
a Judge in Chambers performs by far the most onerous
duties are those cast upon him by the Guardians and Wards
Act. He should place himself in the position of a wise father
and be not tired of the worries which may be occasioned to
him in selecting a guardian best fitted to assure the welfare
of a minor and thereafter guide and control the guardian to
ensure the welfare of the ward-a no mean task but the
highest fulfillment of the dharmasastra of his own country.

It is only an extreme case where a mother may not
have the interest of her child most dear to her. Since it is the
mother who would have the interest of the minor most at
heart, the tender years of a child needing the care, protection
and guidance of the most interested person, the mother has
come to be preferred to others.

In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha
Dolikuka, AIR 1982 SC 1276, this Court held as under:
The principles of law in relation to the custody of a minor
appear to be well-established. It is well settled that any
matter concerning a minor, has to be considered and decided
only from the point of view of the welfare and interest of the
minor. In dealing with a matter concerning a minor, the
court has a special responsibility and it is the duty of the
Court to consider the welfare of the minor and to protect the
minors interest. In considering the question of custody of a
minor, the Court has to be guided by the only consideration
of the welfare of the minor.

According to the Hindu Law, the natural guardian of a
minor child is the father. In the next place, the guardian of a
child is the mother. The very principle of guardianship is that
there is a presumption that parents will be able to exercise
good care in the welfare of their children if they do not happen
to be unsuitable as guardians.

The law permits a person to have the custody of his
minor child. The father ought to be the guardian of the
person and property of the minor under ordinary
circumstances. The fact that the mother has married again
after the divorce of her first husband is no ground for
depriving the mother of her parental right of custody. In cases
like the present one, the mother may have shortcomings but
that does not imply that she is not deserving of the solace and
custody of her child. If the Court forms the impression that
the mother is a normal and independent young woman and
shows no indication of imbalance of mind in her, then in the
end the custody of the minor child should not be refused to
her or else we would be really assenting to the proposition that
a second marriage involving a mother per se will operate
adversely to a claim of a mother for the custody of her minor
child. We are fortified in this view by the authority of the
Madras High Court in Sura Reddy vs. Chenna Reddy, AIR
1950 Madras 306 where Govinda Menon and Basheer Ahmed
Syed, JJ. have clearly laid down that the father ought to be a
guardian of the person and property of the minor under
ordinary circumstances and that fact a Hindu father has
married a second wife is no ground whatever for depriving him
of his parental right of custody.

A man in his social capacity may be reckless or eccentric
in certain respects and other may even develop a considerable
distaste for his company with some justification but all that is
a farcry from unfitness to have the natural solace of the
company of ones own children or for the duty of bringing them
up in proper manner. Needless to say the respondent-
husband, in this case, seems to be anxious to have the minor
child with him as early as possible in order to look after him
properly and to provide for his future education. The feelings
being what they are between the respondent and the appellant
we think it is also natural on the part of the husband to feel
that if the minor child continues to live with his former wife, it
may be brought up to hate the father or to have a very adverse
impression about him. This certainly is not desirable.
Needless to say, this Court is not called upon to find that the
respondent-husband has been entirely blameless in his
conduct and few occasions referred to in this case and by the
boy at the time of interview, it is not the duty of this Court
even to ascertain whether the respondent is of responsible and
good citizen and a preferred individual. Many people have
shortcomings but that does not imply that they are not
deserving of the solace and custody of their children.
However, in the present case, we have to decide in the
interest of the child as to who would be in a better position to
look after the childs welfare and interest. The general view
that the Courts have taken is that the interest and welfare of
the child is paramount. While it is no doubt true that under
the Hindu Law, the father is the natural guardian of a minor
after the age of six years, the Court while considering the
grant of custody of the minor to him has to take into account
other factors as well, such as the capacity of the father to look
after the childs needs and to arrange for his upbringing. It
also has to be seen whether in view of his other commitments,
the father is in any position to give personal attention to the
childs over-all development.

As indicated hereinbefore, we have spoken to the child
who, in our view, is intelligent and appears to be capable of
expressing his preference. In fact, he has in no uncertain
terms indicated his desire to stay with his mother. His
mothers second marriage, instead of proving to be a
disadvantage, has proved to be beneficial for the child who
seems to be happy and contented in his present situation and
we do not think it would be right to unsettle the same.
The High Court committed a grave error in not
ascertaining the wishes of the minor, which has consistently
been held by the Courts to be of relevance in deciding grant of
custody of minor children. We are, therefore, inclined to
restore the order passed by the Family Court and to give
custody of the minor boy to his mother, but as indicated
hereinbefore, we do not want the child to grow up without
knowing the love and affection of his natural father who too
has a right to help in the childs upbringing. We are of the
view that although the custody of the minor child is being
given to the mother, the child should also get sufficient
exposure to his natural father and accordingly we permit the
respondent to have custody of the child from the appellant
during Onam and other important festivals and during the
school vacation. We make it clear that the appellant-mother
shall hand over the child to the respondent-father during every
mid summer vacation for about a month without adversely
affecting the childs education. The appellant should not also
prevent the respondent-father from coming to see the child
during weekends and the appellant should make necessary
arrangements for the respondent to meet his child on such
occasions. The appellant should not also prevent the child
from receiving any gift that may be given by the respondent-
father to the child.

In the result, the above civil appeal stands allowed and
the judgment and final order passed by the High Court of
Kerala in matrimonial appeal No. 208 of 2005 is set aside.
However, there will be no order as to costs.