IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3500 OF 2008
[Arising out of S.L.P. (C) No. 11324 of 2007)
MAUSAMI MOITRA GANGULI — APPELLANT (S)
VERSUS
JAYANT GANGULI — RESPONDENT (S)
JUDGMENT
D.K. JAIN, J.:
Leave granted.
2.Whether the father or the mother should have the custody of an almost ten year old male child is the short question which falls for consideration in this appeal.
3. The appellant-mother and respondent-father got married on 18th April, 1996. It was a love marriage against the wishes of the parents. On 28th May, 1998, a boy, namely, Master Satyajeet was born from the wedlock. However, within a short time, the relationship between the spouses came under strain.
The appellant, who was employed as a teacher, felt that the respondent had misrepresented to her about his occupational status; he did not have any regular income to support the family; he was addicted to alcohol and smoking and also had contacts with anti-social elements. The appellant, it is
claimed, had to support the respondent and his family with
the meagre income she earned from her school job and private
tuitions. It was alleged that the respondent would force her to
keep all her savings in a joint bank account, from which he
used to withdraw money. She was subjected to physical
violence, due to which, on 16th August, 2001, she was forced
to leave her matrimonial home at Allahabad, leaving the infant
with the father.
4.On reaching Calcutta, where her parents were living, she
filed a suit for divorce against respondent, which was decreed
ex-parte on 12th September, 2002. Since no appeal was
preferred by the respondent against the said decree, it
attained finality.
5.On 5th April, 2003, the appellant moved a petition under
Sections 10 and 25 of the Guardians and Wards Act, 1890
read with the provisions of the Hindu Minority and
Guardianship Act, 1956 before the Family Court, Allahabad
seeking a declaration in her favour to be the lawful guardian
of her minor son, Satyajeet and a direction to the respondent
to hand over the custody of the child to her.
6.The application was hotly contested by the respondent.
Resisting her claim, it was alleged that having left him when
he was less than three years of age, the appellant had no
emotional bond with the child; after leaving Allahabad, she
had not even talked to the minor child over the telephone or
enquired about his welfare; being the natural guardian of the
child he was capable of and was, in fact, looking after the
welfare of the child; the child was studying in a prestigious
school at Allahabad for which he was paying a fee of
Rs.25,000/- per annum and had also nominated him in his
insurance policy. As regards his financial position, it was
stated that he owns a house, telephone and a motor car
whereas the appellant has no house of her own and is living
with her mother and brother in a two-room flat at Calcutta.
7.In support of her contentions, the appellant examined
herself as PW-1 and two doctors. On the other hand, the
respondent examined himself as DW-1 and two of his
neighbours as DW-2 and DW-3. Inter alia, observing that the
welfare and interest of the minor is of utmost importance in
relation to grant of custody to either of the parents and taking
into consideration the evidence adduced by the parties, the
Family Court found the respondent to be unfit to act as a
guardian of the minor child. The Court felt that the appellant
had never neglected her child but had to leave Allahabad to
save her life. According to the Family Court, several
applications moved by the appellant for interim custody,
during the pendency of the custody application, showed that
she had affection for her child. The Court observed that the
appellant was a highly qualified teacher drawing a salary of
Rs.22,000/- per month whereas the respondent was only a
private contractor without regular source of income and
though the child was studying in a prestigious school in
Allahabad, there was lack of constant care and protection of
the child in the house of the respondent. Finding the
testimony of the appellant and her two witnesses to be
credible, the Family Court held that for the welfare of the
child, the custody should be with the mother. Accordingly,
the application was allowed; the appellant was declared to be
the lawful guardian of her minor son and the respondent was
directed to hand over the custody of Satyajeet to the appellant,
within one month of the date of judgment.
8.Being aggrieved, the respondent preferred Regular Appeal to
the High Court. Vide order dated 28th February, 2007, the
High Court has set aside the order of the Family Court and
granted permanent custody of Satyajeet to the respondent.
During the pendency of the appeal, vide order dated 7th
November, 2005, as an interim measure, the High Court
granted the custody of the child to the appellant. The High
Court obtained the opinion of the Director of Psychology,
Allahabad, who examined the mother, the father and the child
and also talked to the child practically on every date of
hearing. In the proceedings held on 23rd May, 2006, extracted
in the impugned order, in response to the question as to
whether he would like to stay with his father or mother, the
child stated that he would prefer to stay at Allahabad as it is
his birth place and his mother should come and stay with him
at Allahabad. It is significant to note that the child had stated
so despite the fact that he was living with his mother since 7th
November, 2005, under the orders of the Court. Taking into
account the material on record, the High Court found that: (i)
the respondent is financially sound and able to cater to all the
needs of the child for his development whereas the appellant
is unable to provide the same since she is living all alone; (ii)
the child is not able to reconcile with his uprooting from
Allahabad and denial of love and affection of the father; and
(iii) the questions which were put to the child and answers
thereto indicate that the child wants to study at Allahabad.
Having regard to the prevalent circumstances and the fact
that the child had received his education from primary stage
with his father at Allahabad, the Court came to the conclusion
that the welfare and development of the child and his future
would be best served at present at Allahabad in the hands of
the father. Accordingly, the High Court set aside the order
passed by the Family Court and granted the custody of Master
Satyajeet to the respondent, with the following directions:
“1. The appellant shall make
arrangement for master Satyajeet to
continue his studies in best schools
of Allahabad and will ensure the
development and welfare of the
child in the best way possible.
2. The respondent-mother Ms. Mausami
Moitra shall be at liberty to visit the
child either in the appellant’s house or
in the premises of mutual friend or at
an agreed place at any point of time
and the appellant-father shall not
object to her meeting with the child.
3. The appellant will also allow the child
to live with the mother during school
vacations or on appropriate occasions.
4. Master Satyajeet shall be allowed to
attend and participate in family
functions/festivities subject to his
school attendance and examinations
etc. which are held in the family of her
mother or during any other occasions
as jointly agreed to by the both the
appellant-father and the respondent-
mother.
5. Any other further arrangements
mutually agreed to between the
appellant-father and the respondent-
mother in the interest of the child.”
Consequently, the custody of the child was restored to the
father. It is this order of the High Court which is under
challenge in the present appeal.
9.When the matter came up for hearing, while issuing notice to
the respondent, it was directed that the appellant-mother and
the respondent-father will remain present in Court in person
and the father shall also bring the child with him. On 24th
January, 2008, both the parties and Master Satyajeet
appeared before us. Before hearing the case, we interviewed
Satyajeet in chambers and found that he was quite intelligent
and was able to understand the facts and circumstances in
which he was placed. He could comprehend matters and
visualize his own well-being. He seemed to have no complaint
against his father. He explicitly stated before us that he was
not inclined to go with his mother and would like to stay with
his father and continue his studies at Allahabad where he has
quite a few friends.
10.We have heard learned counsel for the parties.
11.Learned counsel appearing for the appellant submitted
that the order of the High Court directing handing over of the
custody of the minor child to the father is vitiated because the
High Court has ignored the basic principles of law relating to
the custody of the child, as enunciated by this Court in
several judgments. It was contended that the High Court has
failed to take note of a vital fact that being a contractor, the
husband would remain away from the house most of the time
and, therefore, will have very little time at his disposal to look
after the needs of the child, who is left under the care of
father’s old mother. It was also urged that being a school
teacher in a public school, the appellant will be in a much
better position to take care of the needs of the child. It was
pointed out that the appellant has now joined Delhi Public
School at Panipat and has been allotted a staff quarter where
the child can stay under her care and can also study in the
same school. It is, thus, asserted that the appellant-mother
would be in a much better position to take care of the needs of
the child in comparison to the respondent.
12.Learned counsel appearing for the respondent, on the
other hand, while refuting the allegation regarding the non-
availability of the respondent, laid stress on the fact that
during interview of the child by the High Court and this Court,
the child has in very clear terms expressed the desire to stay
with the father which shows that he is being looked after
properly and is already studying in a good school at
Allahabad. It was submitted that shifting of the child from
Allahabad to Panipat in an absolutely new environment, all
alone, with the mother, who had abandoned him when he was
less than three years of age would not only adversely affect his
studies, it will also affect him emotionally.
13.Thus, as noted supra, the short question for consideration
is whether the circumstances as highlighted by the parties
warrant that the custody of the child should be changed from
father to the mother?
14.The principles of law in relation to the custody of a minor
child are well settled. It is trite that while determining the
question as to which parent the care and control of a child
should be committed, the first and the paramount
consideration is the welfare and interest of the child and not
the rights of the parents under a statute. Indubitably the
provisions of law pertaining to the custody of a child contained
in either the Guardians and Wards Act, 1890 (Section 17) or
the Hindu Minority and Guardianship Act, 1956 (Section 13)
also hold out the welfare of the child as a predominant
consideration. In fact, no statute, on the subject, can ignore,
eschew or obliterate the vital factor of the welfare of the minor.
The question of welfare of the minor child has again to be
considered in the background of the relevant facts and
circumstances. Each case has to be decided on its own facts
and other decided cases can hardly serve as binding
precedents insofar as the factual aspects of the case are
concerned. It is, no doubt, true that father is presumed by
the statutes to be better suited to look after the welfare of the
child, being normally the working member and head of the
family, yet in each case the Court has to see primarily to the
welfare of the child in determining the question of his or her
custody. Better financial resources of either of the parents or
their love for the child may be one of the relevant
considerations but cannot be the sole determining factor for
the custody of the child. It is here that a heavy duty is cast on
the Court to exercise its judicial discretion judiciously in the
background of all the relevant facts and circumstances,
bearing in mind the welfare of the child as the paramount
consideration.
15.In Rosy Jacob Vs. Jacob A. Chakramakkal1, a three-
Judge Bench of this Court in a rather curt language had
observed that the children are not mere chattels; nor are they
mere play-things for their parents. Absolute right of parents
over the destinies and the lives of their children has, in the
modern changed social conditions, yielded 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
(1973) 1 SCC 840
welfare of the minor children and the rights of their respective
parents over them.
16.In Halsbury’s Laws of England (Fourth Edition, Vol.13),
the law pertaining to the custody and maintenance of children
has been succinctly stated in the following terms:
“809. Principles as to custody and
upbringing of minors. Where in any
proceedings before any court, the custody
or upbringing of a minor is in question,
the court, in deciding that question, must
regard the welfare of the minor as the
first and paramount consideration, and
must not take into consideration whether
from any other point of view the claim of
the father in respect of such custody or
upbringing is superior to that of the
mother, or the claim of the mother is
superior to that of the father. In relation
to the custody or upbringing of a minor, a
mother has the same rights and authority
as the law allows to a father, and the
rights and authority of mother and father
are equal and are exercisable by either
without the other.”
17.Having bestowed our anxious consideration to the material
on record and the observations made by the courts below, we
are of the view that in the present case there is no ground to
upset the judgment and order of the High Court. There is
nothing on record to suggest that the welfare of the child is in
any way in peril in the hands of the father. In our opinion, the
stability and security of the child is also an essential
ingredient for a full development of child’s talent and
personality. As noted above, the appellant is a teacher, now
employed in a school at Panipat, where she had shifted from
Chandigarh some time back. Earlier she was teaching in
some school at Calcutta. Admittedly, she is living all alone.
Except for a very short duration when he was with the
appellant, Master Satyajeet has been living and studying in
Allahabad in a good school and stated to have his small group
of friends there. At Panipat, it would be an entirely new
environment for him as compared to Allahabad. Having
interviewed Satyajeet in our chambers for some time, we find
it difficult to accept the stand of the appellant that the father
does not have sufficient time or resources to look after the
welfare of the child. We are convinced that the dislocation of
Satyajeet, at this stage, from Allahabad, where he has grown
up in sufficiently good surroundings, would not only impede
his schooling, it may also cause emotional strain and
depression on him. It is also significant to note that during
the course of hearing on one of the dates, when we had not yet
interviewed Satyajeet, we had suggested that it would be
better if the child could stay with his mother for some more
time. However, upon hearing us, he started crying and
whining and, showed reluctance to go with the mother.
Watching his reaction, we dropped the proposal. Under these
circumstances and bearing in mind the paramount
consideration of the welfare of the child, we are convinced that
child’s interest and welfare will be best served if he continues
to be in the custody of the father. In our opinion, for the
present, it is not desirable to disturb the custody of Master
Satyajeet and, therefore, the order of the High Court giving his
exclusive custody to the father with visitation rights to the
mother deserves to be maintained. We feel that the visitation
rights given to the appellant by the High Court, as noted
above, also do not require any modification. We, therefore,
affirm the order and the afore-extracted directions given by
the High Court. It will, however, be open to the parties to
move this Court for modification of this order or for seeking
any direction regarding the custody and well-being of the
child, if there is any change in the circumstances.
18.In the result, the appeal fails and is dismissed accordingly.
However, having regard to the nature of the case, we leave the parties to bear their own costs.