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Rules for Child Custody – SC

CASE NO.:Appeal (civil) 1685-1686 of 2001


DATE OF JUDGMENT: 02/03/2001

BENCH:D.P. Mohapatra , Shivaraj V. Patil


Leave granted.

The controversy raised in this case relates to the
interim custody of the two minor sons of the appellant. He
has filed this appeal assailing the judgment/order dated
16th November, 2000 of the High Court of Madras in which a
Division Bench of the Court ordered that interim custody of
the children should be with the maternal grand-parents, the
respondents herein, till the matter is finally decided by
the competent court. The Division Bench also directed the
Family Court to number the petition filed by the respondents
for custody of the children and dispose of the same as early
as possible within three months of the date of receipt of
the order. It is stated in the judgment/order that interim
custody of the children is to be given to their maternal
grand-parents for their better welfare and also to perform
the rituals/karma of their deceased mother. The Court
permitted the appellant and paternal grand- parents of the
children to visit them, if they so desire, twice a month
with prior intimation till the matter is finally decided.
The High Court also granted liberty to the parties to move
the Court under the Guardians and Wards Act and also to move
for an interim custody, after withdrawing the petition filed
before the Family Court. It was made clear that any
observation made in the judgment/order will not prejudice
either side and the arrangement made in the order is only an
interim arrangement and will not create any right or
prejudice to the case of either side. The facts of the case
leading to the present proceeding, shorn of unnecessary
details, may be stated thus: R.V.Srinath Prasad the
appellant was married to Kumudini, daughter of respondent
no.1. Two sons, Jay Viraj, now aged about 5 years and Neal
Krishna aged about 3 years were born of the said wedlock.
Both the parties belong to well to do families. While
respondent no.1 is the son of late N.T.Rama Rao, the
appellant is a businessman engaged in commercial activities
in U.S.A. After their marriage in 1993 the couple lived in
USA till December, 1999 and during the said period the two
children were born, one in 1995 and the other in 1997. The
wife returned to India with the two children in December,
1999 and lived with her parents-in-law at Chennai between
January to July, 2000. On 24th October, 2000 the wife
consumed some poisonous material in her friend’s house and
fell ill. After remaining in coma from 24th October, 2000
she expired on 29th October, 2000. Shortly before the
tragic incident happened the wife with her two children had
shifted to a flat purchased by her father – at Chennai.
Before going to her friend’s house on 24th October, 2000 she
had left the children with her parents-in-law. The
cremation of her body was done in Chennai. The respondent
no.1 filed a petition in the Family Court at Chennai seeking
custody of the minor children on 7th November, 2000. On the
same day he filed a writ petition in the High Court seeking,
inter alia, a writ of Mandamus to the Family Court, Chennai
to dispose of the petition expeditiously. In the said writ
petition, an application for interim order was filed with
the prayer, which reads as follows: “For the reasons stated
in the accompanying affidavit, the petitioner herein prays
that pending disposal of the above writ, this Honourable
Court may be pleased to direct the respondents, to handover
the interim custody of the Two grand children Jay Viraj
Prasad and Neal Krishna to the petitioner to enable him to
take them to Hyderabad for performing the Karma of their
deceased mother and the petitioner’s deceased daughter
Kumudini on 8.11.2000 and continue to have the custody of
the said two grand children until further orders of this
Honourble Court and pass such other further order or orders
as this Honourble Court may deem fit and proper, under such
circumstances of this case.”

(Emphasis supplied)

The writ petition and the interim application came up
before a single Judge of the High Court on the same day i.e.
the 7th November, 2000 on which day the learned single Judge
while ordering notice of motion returnable by four weeks
passed an ex- parte interim order, the operative portion of
which reads as follows:

“Accordingly, there shall be a direction to the
Commissioner of Police, Chennai to trace out the children
Jai Viraj and Neal Krishna immediately and handover the said
children to the custody of the counsel on record for the
petitioner Ms.B.Saraswati. When the children are handed
over, they must be accompanied to Hyderabad with Police
protection and the children must be allowed to perform
obsequies. It is also made clear that the petitioner who is
the maternal grand father of the children must be
responsible for the safe custody of the children.”

(Emphasis supplied)

The said order was challenged before the Division Bench
in Writ Appeal No.1954 of 2000 filed by the appellant
herein. In the said appeal an application for interim order
being CMP No.17059 of 2000, was also filed. The Division
Bench disposed of the writ appeal as well as the application
for interim order by the order dated 16th November, 2000
which is under challenge in this appeal.

Shri Shanti Bhushan, learned senior counsel appearing
for the appellant strenuously urged that the entire approach
of the Division Bench to the matter is grossly erroneous and
that has vitiated the order passed by it. The Division
Bench, submitted Shri Shanti Bhushan, has ignored the
essential material facts; that the appellant, father of the
minor children, is their natural guardian; that he has
returned to India with a view to carry on business here;
that he is staying with his parents at Chennai and that the
children were staying with them. According to Shri Shanti
Bhushan, no material was produced before the Division Bench
and none has been noticed in the judgment/order under
challenge which would even prima facie show that the custody
of the minor children should be changed. Shri Shanti
Bhushan further submitted that the children are attached to
their father and miss him very much. Both the children were
attending school at Chennai and their schooling had to be
discontinued in view of the order directing interim custody
of the children to be given to the maternal grand- parents.
Refuting the observation in the judgment/order under
challenge that the appellant stays in USA, Shri Shanti
Bhushan filed an affidavit by the appellant containing a
statement that he has decided to settle down in Chennai for
the purpose of carrying on business. He has also set up a
factory at the Export Processing Zone at Chennai. It is
further stated in the affidavit that the appellant stays
with his parents – respondent nos.2 and 3 herein; his
sister, who is a medical practitioner running a hospital at
Coimbatore has two children, a daughter aged 7 years and a
son aged 3 years; she visits Chennai at least twice a
month. Referring to the affidavit Shri Shanti Bhushan
submitted that if custody of the children is left with the
appellant there will be no difficulty in giving them proper
care and attention. They will have the company of the
children of his sister. Shri Shanti Bhushan contended that
the procedure followed by the Division Bench in hastily
disposing of the writ appeal dealing with the interim
custody of the children while leaving the matter to the
Family Court for decision on merits is unsustainable and
should be set aside.

Shri K.N.Bhat, learned senior counsel appearing for the
respondents supported the contentions raised by Shri Shanti

Shri Rakesh Dwivedi, learned senior counsel appearing
for the contesting respondents urged that there are
materials on record to show that in the life-time of the
deceased wife, the appellant had ill-treated and ignored her
which caused serious mental torture to the lady compelling
her to part company with her husband and return to Chennai.
Ultimately she committed suicide. Sri Dwivedi relied on the
note left by the deceased in support of his contention. It
was the further submission of Sri Dwivedi that the deceased
wife suspsected that her husband was having an extra-marital
affair with one Tania Kapoor, whose father is a business
associate of the appellant. In the circumstances of the
case, Sri Dwivedi submitted it is in the best interest of
the children to place them in custody of such a person.
Shri Dwivedi also raised the contention that the High Court
has independent jurisdiction under the Letters Patent to
decide the question of custody of minors and therefore, no
exception can be taken to the impugned judgment/order on the
ground of lack of jurisdiction.

Custody of minor children is a sensitive issue. It is
also a matter involving sentimental attachment. Such a
matter is to be approached and tackled carefully. A balance
has to be struck between the attachment and sentiments of
the parties towards the minor children and the welfare of
the minors which is of paramount importance.

At the outset, we would like to observe that it will not
be fair and proper for us to delve deep into the merit of
the case since the petition filed for custody of the minor
children is pending before the Family Court at Hyderabad and
any finding recorded or observation made by us in this
proceeding may prejudice the parties. Therefore, we will
try to avoid entering deep into the merits of the case as
far as possible. On a perusal of the judgment/order passed
by the Division Bench, we are constrained to observe that
neither the manner of disposal of the proceeding nor the
order directing the change of custody of the children from
their father to their maternal grand-parents can be
supported. The Division Bench appears to have lost sight of
the factual position that the time of death of their mother
the children were left in custody of their paternal grand
parents with whom their father is staying and the attempt of
the respondent no.1 was to alter that position before the
application filed by them is considered by the Family Court.
For this purpose it was very relevant to consider whether
leaving the minor children in custody of their father till
the Family Court decides the matter would be so detrimental
to the interest of the minors that their custody should be
changed forthwith. The observations that the father is
facing a criminal case, that he mostly resides in USA and
that it is alleged that he is having an affair with another
lady are, in our view, not sufficient to come to the
conclusion that custody of the minors should be changed
immediately. It is relevant to state here that the
respondent no.1 maternal grand-parents wanted immediate
custody of the minor children for the purpose of performing
certain obsequies in connection with the cremation ceremony
of his deceased daughter and that purpose had been served by
the order passed by the learned single Judge and such
necessity for interim custody had ceased when the Division
Bench passed the judgment/order under challenge. On the
materials on record we are not satisfied that there was any
urgency in disposing of the case with such haste without
affording reasonable opportunity to the appellant to place
material on record. The procedure followed by the High
Court is neither fair nor proper.

The High Court appears to have overlooked the settled
principle that custody orders by their nature can never be
final; however , before a change is made it must be proved
to be in the paramount interest of the children. In a
sensitive matter like this no single factor can be taken to
be decisive. Neither affluence nor capacity to provide
confortable living should cloud the consideration by the
Court. Here we may refer to the decision of this Court in
Jai Prakash Khadria vs. Shyam Sunder Agarwalla and another
2000(6) SCC 598. In such matters usually, Courts while
granting the custody of minor children to one party extend
the facility of visiting them to the other. At the cost of
repetition we may state that we are not discussing the
merits of the case pleaded by the parties in detail since
the application for the custody is pending for adjudication
before the Family Court at Hyderabad. For the reasons set
forth in the preceding paragraphs we are not persuaded to
sustain the order passed by the High Court changing the
custody of the minor children from their father to their
maternal grand parents.

The appeals are allowed. The order passed by the Division Bench dated 16.11.2000 in Writ Appeal No.1954/2000 and in C.M.P.No.17059/2000 is set aside. The respondent no.1 shall leave the minor children in the custody of the appellant. He will have the right to visit the children twice a month with prior intimation to the appellant. The appellant shall make necessary arrangements for the purpose. This order is passed without prejudice to the rights and contentions of the parties. There will,however, be no order for costs.

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