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Welfare and interest of the child



[Arising out of S.L.P. (C) No. 11324 of 2007)



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

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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-

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.

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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


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

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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.

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