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Death,498A,Custody to Grand Parents


  CIVIL APPEAL NO. 4960  OF 2008




  J U D G M E N T


1.  Leave granted.
2.  The  present  appeal  is  filed  against the judgment and order passed by the Additional District  &  Sessions  Judge,  Fast  Track,  1st Court, Barasat on July 15, 2006 and confirmed by the High Court of Calcutta in F.M.A.T. No.3185  of  2006  on  December  7,  2007.  By  the impugned orders, both the Courts below directed handing over custody of minor child Antariksh Kundu  to  father-Abhijit  Kundu,  respondent herein.
Factual matrix

3.  To understand the controversy in the appeal,  it  is  appropriate  if  we  narrate relevant facts of the case:
4.  The appellants herein, (i) Nil Ratan

Kundu and (ii) Smt. Kabita Kundu are maternal

grand father and grand mother respectively of

minor Antariksh, father and mother of deceased

Mithu Kundu and father-in-law and mother-in-law

of Abhijit Kundu-respondent herein. It is the

case of the appellants that they had a daughter

named  Mithu  whom  they  gave  in  marriage  to

Abhijit Kundu on August 8, 1995. The marriage

was  performed  according  to  Hindu  rites  and

ceremonies. Sufficient amount of dowry by way

of  money,  ornaments  and  other  articles  was

given  to  the  respondent.  According  to  the

allegation  of  the  appellants,  however,  the

respondent and his mother were not satisfied

with the dowry and they started torturing Mithu

for bringing more money from the appellants. On

November 18, 1999, a male child-Antariksh was

born  from  the  said  wedlock.  The  appellants

thought that after the birth of son, torture on

Mithu would be stopped. Unfortunately, however,

it  did  not  so  happen.  Mithu  was  totally

neglected  and  the  harassment  continued.  She

became seriously sick. Coming to know about the

ill-health of Mithu, the appellants brought her

to  their  house  and  got  admitted  her  in  a

nursing home for medical treatment. On being

cured, she returned to her matrimonial home,

but the demand of dowry persisted and physical

and mental cruelty did not stop.
5.  In  the  night  of  April  9,  2004,  as

alleged by the appellants, Mithu was brutally

assaulted by the respondent and his mother and

was  brought  to  a  hospital  where  she  was

declared  dead.  Immediately  on  the  next  day

i.e. on April 10, 2004, appellant No.1 lodged

First  Information  Report  (FIR)  against  the

respondent and his mother at Baranagar Police

Station which was registered as Case No. 90 for

offences  punishable  under  Sections  498A  and

304, Indian Penal Code (IPC). The respondent

was arrested by the police in that case.
6.  On  April  18,  2004,  custody  of

Antariksh was handed over to the appellants.

Antariksh was found in sick condition from the

residence of the respondent. At that time, he

was only of five years. It was his maternal

grand father-appellant No.1, who maintained the

child with utmost love and affection. He was

admitted  to  St.  Xaviers  Collegiate  School,

Kolkata which is a well-known and well-reputed

school in the State of West Bengal.
7.  After due investigation of the case,

on May 31, 2005, police submitted a charge-

sheet against the respondent and his mother and

the  criminal  case  is  pending.  After  the

respondent was enlarged on bail, he filed an

application under the Guardians and Wards Act,

1890 (hereinafter referred to as `1890 Act)

praying for custody of Antariksh. A reply was

filed by the appellants to the said application

strongly objecting to the prayer made by the

respondent.  It  was  expressly  stated  in  the

reply that custody of child Antariksh was given

to them when he was found in ailing condition

in the house of the respondent. The respondent

and his mother had killed their daughter and a

criminal  case  was  pending  and  custody  of

Antariksh  may  not  be  given  to  the  father-respondent.
Trial Courts order
8.  The trial Court, after considering the

evidence on record, allowed the application and

held  that  respondent  was  father  and  natural

guardian  of  Antariksh  and  the  present  and

future of Antariksh would be better secured in

the  custody  of  respondent.  Accordingly  it

passed an order that custody of Antariksh be

`immediately given to the father.
High Courts order
9.  Being aggrieved by the said order, the

appellants approached the High Court. But the

High Court also, by the order impugned in the

present appeal, dismissed the appeal holding

that  the  trial  Court  was  right  in  ordering

custody to be given to the father and the said

order  did  not  suffer  from  infirmity.  The

Division Bench of the High Court, therefore,

directed  the  appellants  to  handover  child

Antariksh in the custody of his father with

visitation rights to the appellants. The said
order is challenged by the appellants-maternal

grand parents of Antariksh in this Court.

Earlier orders
10.  On March 7, 2008, when the matter was

placed for admission hearing, notice was issued

by this Court and was made returnable on March

24, 2008. The Court also observed that let the

child (Antariksh) remain present in the Court

on that day at 10.30 a.m. The learned counsel

appearing for the appellants stated that the

appellants  would  bear  expenses  of  bringing

Antariksh  to  the  Court.  Accordingly,  a

direction  was  issued  that  for  that  purpose,

custody  of  Antariksh  may  be  given  to  the

appellants on March 22, 2008.

11.  On the returnable date, i.e. on March

24, 2008, the Court heard learned counsel for

the  parties.  The  Court  also  ascertained  the

wishes of Antariksh. It was, however, observed

in the order that an appropriate order would be

passed on March 31, 2008, the day on which the

matter was ordered to be listed for further

hearing.  It  was  stated  that  till  then  the

custody of Antariksh would remain with maternal

grand parents. It was also observed that it

would  not  be  necessary  to  keep  Antariksh

present in the Court on the adjourned date. On

March  31,  2008,  the  matter  appeared  on  the

board and the learned counsel for the parties

were  heard.  The  learned  counsel  for  the

respondent prayed for time to file affidavit in

reply. It was also stated that the matter was

urgent and affidavit should be filed within a

very  short  period.  The  Court,  therefore,

observed that let such affidavit-in-reply be

filed  on  or  before  April  2,  2008  and  the

affidavit-in-rejoinder be filed on or before

April  4,  2008.  The  matter  was  adjourned  to

April 7, 2008. On April 7, 2008, again the

Court heard learned counsel for the parties and

felt that the matter should be heard finally on

a  non-miscellaneous  day  and  accordingly  the

Registry was directed to place the matter in

the last week of April, 2008. The matter was,

therefore, placed on board for final hearing

and it was heard on April 29-30, 2008.

Appellants submissions
12.  The learned counsel for the appellants

strenuously contended that both the Courts were

wholly  wrong  in  granting  custody  of  minor

Antariksh to the respondent. It was stated that

the approach of the Courts below was technical

and  legalistic  rather  than  pragmatic  and

realistic. It was stated that in such matters,

paramount consideration which is required to be

borne in mind by the Court is welfare of the

child and nothing else. Precisely that has not

been done.
13.  It was alleged that the respondent and

his family members were after dowry and they

had tortured Mithu since she could not bring

sufficient amount of dowry. She was physically

and mentally harassed. She became ill and was

admitted to hospital by the appellants. After

she  was  cured,  she  returned  to  matrimonial

home, but the harassment and cruelty persisted.

Even  after  the  birth  of  Antariksh,  the

difficulties did not come to an end and as

Mithu  was  unable  to  bring  more  money,  as

demanded  by  the  respondent  and  his  family

members,  she  was  killed  and  criminal

proceedings  were  initiated  against  the

respondent and his mother which are pending.
14.  It was further stated that the above

incident  had  given  mental  shock  to  minor

Antariksh who was also found sick in the house

of the respondent when he was of five years of

age. The appellants brought Antariksh with them

and got him admitted in a recognized and well

reputed school and he is very well settled. In

the circumstances, the Courts ought not to have

passed  an  order  directing  the  appellants  to

handover  custody  of  Antariksh  to  the

15.  It was also contended that the trial

Court which exercised the power under 1890 Act,

did  not  ascertain  wishes  of  Antariksh  by

calling him, observing that none of the parties

asked for such examination and considering his

age, such action was not taken. So far as the

High Court is concerned, it observed that the

child had been `tutored to make him hostile

towards his father. According to the counsel,

there was nothing to show on what basis the

above statement had been made by the High Court

and the custody had been wrongly granted to the

respondent. The said order, therefore, deserves

to be set aside.
16.  It  was  also  argued  that  under  1890

Act, in appointing or declaring a guardian of a

minor,  the  Court  should  keep  in  mind  the

welfare  of  the  minor  being  paramount

consideration having 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. If the minor is

old enough to form an independent opinion or

preference, the Court may consider that aspect

as well. In the instant case, the trial Court

decided  the  matter  on  July  15,  2006  when

Antariksh was more than six years of age. But

neither his wishes were ascertained, nor his

preference was even enquired by calling him. It

was also submitted that though `character of

the  proposed  guardian  has  to  be  taken  into

account, the Courts below did not appreciate in

its proper perspective the fact that a criminal

case was pending against the respondent which

related  to  the  death  of  mother  of  minor

Antariksh involving the respondent himself and

his mother and by observing that if he would be

convicted, appropriate action could be taken

thereafter. The High Court also committed the

same mistake. Both the orders, therefore, are

liable to be set aside.
Respondents submissions
17.  The  learned  counsel  for  the

respondent-father, on the other hand, supported

the  order  passed  by  the  trial  Court  and

confirmed by the High Court. It was urged that

both the Courts below considered the relevant

provisions  of  law,  the  position  of  the

respondent as natural guardian being father of

Antariksh and the facts in their entirety and

held  that  there  was  no  earthly  reason  to

deprive him of custody of minor Antariksh. The

Courts felt that minor Antariksh also should

not be deprived of natural love and affection

of his father in absence of mother.

18.  According to the counsel, the Courts

were conscious of the fact that a criminal case

was  pending  against  the  respondent  and,

therefore,  observed  that  if  ultimately  the

respondent would be convicted and sentenced to

jail, the appellants herein (grand parents of

the child) could move the Court for change of

custody. Such an order cannot be said to be

illegal or contrary to law and in the exercise

of  jurisdiction  under  Article  136  of  the

Constitution, this Court may not interfere with it.
19.  Before  we  address  ourselves  to  the

issue regarding custody of Antariksh, let us

consider the legal position.
English Law
20.  In Halsburys 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 minors welfare as the
  first and paramount consideration, and
  may  not  take  into  consideration
  whether from any other point of view
  the fathers claim in respect of that
  custody or upbringing is superior to
  that of the mother, or the mothers
  claim is superior to that of the
  father.  (emphasis supplied)

21.  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).
22.  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.
23.  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 fathers 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.

See also  Delay in lodging complaint results in exaggeration

24.  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

interest of a child to grant its custody to the

father  or  mother,  the  Court  may  properly

consult  the  child,  if  it  has  sufficient


25.  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
American Law
26.  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)
27.  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
  Courts 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
  childs  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

  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)
28.  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.
29.  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)
30.  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.
Indian Law
31.  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  and

Wards Act, 1890 consolidates and amends the law

relating to guardians and wards.  Section 4 of

the 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) relates

to appointment and declaration of guardians.

Section 7 deals with `power of the Court to

make order as to guardianship and reads as


  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.
32.  Section  8  of  the  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)
33.  Section  19  prohibits  the  Court  from

appointing guardians in certain cases.
 34.  Chapter  III  (Sections  20  to  42)

prescribes duties, rights and liabilities of

 35.  Hindu Minority and Guardianship Act,

1956 (hereinafter referred to as 1956 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.

36.  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 minors
  person as well as in respect of the
  minors 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.
37.  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

  (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)
38.  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.

39.  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.
Case law

40.  The  aforesaid  statutory  provisions

came up for consideration before Indian Courts

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.
41.  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)

See also  Delhi HC : Wife’s allegation of Infidelity amount to cruelty

42.  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  wards  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.
43.  The Court further observed that 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. The Court also observed that

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  has,  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.
44.  Again,  in  Thrity  Hoshie  Dolikuka  v.

Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544,

this Court reiterated that 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 enure to the benefit and

welfare of the child.
45.  In  Surinder  Kaur  Sandhu  (Smt.)  v.

Harbax Singh Sandhu, (1984) 3 SCC 698, this

Court held that Section 6 of the Hindu Minority

and Guardianship Act, 1956 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].
46.  Recently, in Mausami Moitra Ganguli v.

Jayant Ganguli, JT (2008) 6 SC 634, we have

held  that  the  first  and  the  paramount

consideration is the welfare of the child and

not the right of the parent.
47.  We observed;

  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 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 are 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 al the relevant
facts and circumstances, bearing in

  mind the welfare of the child as the
  paramount consideration.

48.  In  Kirtikumar  Maheshanker  Joshi  v.

Pradip Kumar Karunashanker Joshi, (1992) 3 SCC

573, custody of two minor children was sought

by father as also by maternal uncle.  Mother

died unnatural death and the father was facing

charge under Section 498-A, Indian Penal Code.

Children  were  staying  with  maternal  uncle.

Before this Court, both the children expressed

their desire to stay with maternal uncle and

not with the father.
49.  Considering  the  facts  and circumstances  and  bearing  in  mind  the  case

pending against the father and rejecting his

prayer for custody and granting custody to the

maternal uncle, the Court stated;

  After talking to the children, and
  assessing their state of mind, we are
  of the view that it would not be in
  the  interest  and  welfare  of  the
  children to hand over their custody to
  their  father  Pradipkumar.  We  are
  conscious that the father, being a
  natural guardian, has a preferential
  right to the custody of his minor
  children but keeping in view the facts
  and circumstances of this case and the
  wishes of the children, who according
  to  us  are  intelligent  enough  to
  understand their well-being, we are
  not inclined to hand over the custody
  of Vishal and Rikta to their father at   this stage.
50.  The counsel also invited our attention

to decisions of various High Courts. In Tarun

Ranjan Majumdar & Anr. v. Siddhartha Datta, AIR

1991 Cal 76, the High Court considered Sections

7, 12 and 25 of 1890 Act. It held that when the

Court is of the opinion that some order is

required to be passed with regard to custody of

a  ward,  it  can  be  passed  considering  the

welfare of the ward. It was further observed

that even if a child is in the custody of one

who has no legal right thereto and its welfare

is reasonably looked after in a manner in which

it should, the legal guardian cannot claim an

order of return or recovery of custody merely

on the strength of his legal right or financial soundness.
51.  In Bimla Devi v. Subhas Chandra Yadav

`Nirala, AIR 1992 Pat 76, the Court held that

paramount consideration should be welfare of

minor and normal rule (the father is natural

guardian  and  is,  therefore,  entitled  to  the

custody of the child) may not be followed if he

is  alleged  to  have  committed  murder  of  his

wife. In such case, appointment of grand-mother

as guardian of minor girl cannot be said to be

contrary to law.
52.  Construing the expression `welfare in

Section 13 of 1956 Act liberally, the Court observed;

  It is well settled that the word
  `welfare used in this section 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.  (emphasis supplied)
53.  In Goverdhan Lal & Ors. v. Gajendra

Kumar,  AIR  2002  Raj  148,  the  High  Court

observed  that  it  is  true  that  father  is  a

natural guardian of a minor child and therefore
has a preferential right to claim custody of

his  son,  but  in  the  matters  concerning  the

custody  of  minor  child,  the  paramount

consideration is the welfare of the minor and

not  the  legal  right  of  a  particular  party.

Section  6  of  1956  Act  cannot  supersede  the

dominant consideration as to what is conducive

to the welfare of the minor child. It was also

observed that keeping in mind the welfare of

the child as the sole consideration, it would

be proper to find out wishes of the child as to

with whom he or she wants to live.

54.  Again, in M.K. Hari Govindan v. A.R.

Rajaram, AIR 2003 Mad 315, the Court held that

custody cases cannot be decided on documents,

oral evidence or precedents without reference

to  `human  touch.  The  human  touch  is  the

primary one for the welfare of the minor since

the other materials may be created either by

the  parties  themselves  or  on  the  advice  of

counsel to suit their convenience.
55.  In  Kamla  Devi  v.  State  of  Himachal

Pradesh, AIR 1987 HP 34, the Court observed;

  (T)he Court while deciding child
  custody cases in its inherent and
  general jurisdiction is not bound by
  the mere legal right of the parent or
  guardian. 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  parens
  patriae jurisdiction arising in such
  cases  giving  due  weight  to  the
  circumstances  such  as  a  childs
  ordinary  comfort,  contentment,
  intellectual,  moral  and  physical
  development, his health, education and
  general maintenance and the favourable
  surroundings. These cases have to be
  decided ultimately on the Courts view
  of the best interests of the child
  whose welfare requires that he be in
  custody of one parent or the other.

Principles  governing  custody  of  minor children

56.  In our judgment, the law relating to

custody of a child is fairly well-settled and

it is this. In deciding a difficult and complex

question as to custody of minor, a Court of law

should keep in mind relevant statutes and the

rights flowing therefrom. But such cases cannot

be  decided  solely  by  interpreting  legal

provisions.  It  is  a  humane  problem  and  is

required to be solved with human touch. A Court

while dealing with custody cases, is neither

bound  by  statutes  nor  by  strict  rules  of

evidence  or  procedure  nor  by  precedents.  In

selecting  proper  guardian  of  a  minor,  the

paramount consideration should be the welfare

and well-being of the child. In selecting a

guardian,  the  Court  is  exercising  parens

patriae  jurisdiction  and  is  expected,  nay

bound, to give due weight to a childs ordinary

comfort,  contentment,  health,  education,

intellectual  development  and  favourable

surroundings.  But  over  and  above  physical

comforts, moral and ethical values cannot be

ignored. They are equally, or we may say, even

more  important,  essential  and  indispensable

considerations. If the minor is old enough to

form an intelligent preference or judgment, the

Court must consider such preference as well,

though the final decision should rest with the

Court as to what is conducive to the welfare of the minor.

Orders of Courts below not in consonance with law
57.  Having  given  anxious  and  thoughtful

consideration  to  the  facts  of  the  case  and

applying well settled principles referred to

above, we are constrained to observe that the

orders passed by the Courts below are short of

the  fundamental  principles  on  more  than  one ground.

58.  The approach of both the Courts is not

in accordance with law and consistent with the

view taken by this Court in several cases. For

instance,  both  the  Courts  noted  that  the

appellants (maternal grand parents) are giving

`all love and affection to Antariksh but that

does  not  mean  that  Antariksh  will  not  get

similar love and affection from his father. It

was also observed that appellants no doubt got

Antariksh  admitted  to  a  well  reputed  school

(St. Xaviers Collegiate School, Kolkata). But

it could not be said that the father will not

take personal care of his son. Both the Courts

also emphasized that the father has right to

get custody of Antariksh and he has not invoked

any disqualification provided by 1956 Act.

59.  We  are  unable  to  appreciate  the

approach of the Courts below. This Court in

catena  of  decisions  has  held  that  the

controlling consideration governing the custody

of children is the welfare of children and not

the right of their parents.

60.  In Rosy Jacob, this Court stated;

  The contention that if the husband
  (father) is not unfit to be the
  guardian of his minor children, then,
  the question of their welfare does not
  at  all  arise  is  to  state  the
  proposition a bit too broadly may at
  times be somewhat misleading.
61.  It was also observed that the fathers

fitness has to be considered, determined and

weighed predominantly in terms of the welfare

of his minor children in the context of all the
relevant  circumstances.  The  fathers  fitness

cannot override considerations of the welfare of the minor children.

62.  In our opinion, in such cases, it is

not the `negative test that the father is not

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`unfit or disqualified to have custody of his

son/daughter  is  relevant  but  the  `positive

test that such custody would be in the welfare

of the minor which is material and it is on

that basis that the Court should exercise the

power to grant or refuse custody of minor in

favour of father, mother or any other guardian.

63.  Though this Court in Rosy Jacob held

that children are not mere chattels nor toys,

the trial Court directed handing over custody

of Antariksh `immediately by removing him from

the  custody  of  his  maternal  grand-parents.

Similarly, the High Court, which had stayed the

order of the trial Court during the pendency of

appeal ordered handing over Antariksh to his

father within twenty four hours positively. We
may only state that a child is not `property

or `commodity. To repeat, issues relating to

custody of minors and tender-aged children have

to be handled with love, affection, sentiments

and by applying human touch to the problem.

64.  At  another  place,  the  trial  Court

noted that a criminal case was pending against

the father but the pendency of the case did not

ipso  facto  disqualify  him  to  act  as  the guardian of Antariksh.

65.  The Court stated; If ultimately the

petitioner (father) is convicted and sentenced

in that case, the OPs (maternal grand-parents

of Antariksh) will have the scope to inform the

fact to the Court and to pray for change of the Courts decision.

66.  The Court made a `comparative study

and observed that it had `no hesitation in

holding  that  the  present  and  future  of

Antariksh  would  be  better  secured  in  the custody of his father.

67.  It then stated;

  Antariksh  should  be,  therefore,
  immediately removed from the custody
  of OPs (Maternal grand-parents) to the
  custody of the petitioner (father).  (emphasis supplied)
68.  The appellants herein challenged the

decision of the trial Court by approaching the

High Court. With respect, the High Court also

committed  the  same  error  by  not  applying

correct principle and proper test of welfare of

minor  (Antariksh)  as  the  paramount

consideration. It, no doubt, referred to the

principle, but held that the trial Court was

right in handing over custody of Antariksh to the father.

69.  The  High  Court  then  proceeded  to state;

  We have gone through the evidence
  adduced by both sides and also heard
  the child in order to decide the
  question of the welfare of the said
  child. During our conversation with
  the child we have observed with great
  anxiety that the child has been
  tutored to make him hostile towards
  his father. In this connection it is
  worth mentioning here that the learned
  Court below also held that the O.Ps
  wanted to wipe out the existence and
  identity of father from the mind of
  the petitioners son and if it so,
  then it may be disastrous for the
  future of the petitioners son.   (emphasis supplied)
70.  We are sorry to say that there is no

material on record as to on what basis the

above inference was drawn or opinion was formed

by the High Court.

71.  Now,  it  has  come  in  evidence  that

after death of Mithu (mother of Antariksh) and

lodging  of  First  Information  Report  by  her

father against Abhijit (father of Antariksh)

and  his  mother  (paternal  grand  mother  of

Antariksh), Abhijit was arrested by police. It

was also stated by Nil Ratan Kundu (father of

Mithu) that mother of accused Abhijit (paternal

grand  mother  of  Antariksh)  absconded  and

Antariksh  was  found  sick  from  the  house  of Abhijit.

72.  In  our  considered  opinion,  on  the

facts and in the circumstances of the case,

both the Courts were duty bound to consider the

allegations against the respondent herein and

pendency  of  criminal  case  for  an  offence

punishable under Section 498A, IPC. One of the

matters which is required to be considered by a

Court of law is the `character of the proposed

guardian. In Kirit Kumar, this Court, almost in

similar  circumstances  where  the  father  was

facing the charge under Section 498-A, IPC, did

not grant custody of two minor children to the

father and allowed them to remain with maternal

uncle.  Thus,  a  complaint  against  father

alleging and attributing death of mother and a

case  under  Section  498-A,  IPC  is  indeed  a

relevant factor and a Court of law must address

to  the  said  circumstance  while  deciding  the

custody of the minor in favour of such person.

To us, it is no answer to state that in case

the father is convicted, it is open to maternal

grand  parents  to  make  an  appropriate

application for change of custody. Even at this

stage,  the  said  fact  ought  to  have  been

considered and appropriate order ought to have been passed.

73.  As already noted, Antariksh was aged

six  years  when  the  trial  Court  decided  the

matter.  He  was,  however,  not  called  by  the

Court with a view to ascertain his wishes as to

with whom he wanted to stay. The reason given

by the trial Court was that none of the parties

asked for such examination by the Court.

74.  In our considered opinion, the Court

was not right. Apart from statutory provision

in the form of sub-section (3) of Section 17 of

1890 Act, such examination also helps the Court

in  performing  onerous  duty,  in  exercising

discretionary  jurisdiction  and  in  deciding

delicate  issue  of  custody  of  a  tender-aged

child. Moreover, the final decision rests with

the  Court  which  is  bound  to  consider  all

questions  and  to  make  an  appropriate  order

keeping  in  view  the  welfare  of  the  child.

Normally, therefore, in custody cases, wishes

of the minor should be ascertained by the Court

before deciding as to whom custody should be given.

75.  Before about a century, in Anni Besant

(Mrs.) v. G. Narayaniah & Anr., 41 IA 314 : AIR

1914 PC 41, under an agreement, custody of two

minor sons was with the mother who was staying

in England.  The father who was residing in

Madras, instituted a suit for custody of his

sons asserting that he was the natural guardian

of the minors and was entitled to have custody

of both his sons.  The trial Court decreed the

suit which was confirmed by the High Court.

76.  The  Judicial  Committee  of  the  Privy

Council  held  that  under  the  Hindu  Law,  the

father was the natural guardian of his children

during their minority.  But it was stated that

the infants did not desire to return to India

and no order directing the defendant mother to

send minors to India could have been lawfully

made by an Indian Court.

77.  Upholding the contention, allowing the

appeal and dismissing the suit, their Lordships

observed that it was open to the plaintiff-

father to apply to His Majestys High Court of

Justice in England for getting custody of his

sons.  If he does so the interests of the

infants will be considered, and care will be

taken  to  ascertain  their  own  wishes  on  all

material prints.  (emphasis supplied)  Since

it was not done, the decree passed by both the

Courts was liable to be set aside.

78.  We may, however, refer at this stage

to a submission of the learned counsel for the

respondent-father.  Referring  to  Thrity,  the

counsel contended that this Court held that the

Court is not bound to interview the child. In

that case, this Court did not interview the

minors and did not ascertain their wishes. It

was,  therefore,  submitted  that  it  cannot  be

said  that  non-examination  of  Antariksh  or

failure to ascertain his wishes by the trial

Court was illegal or unlawful and vitiated the order.

79.  We  are  unable  to  agree  with  the

learned counsel. We have closely gone through

Thrity. Reading the decision as a whole makes

it amply clear that on the facts of the case,

this  Court  felt  that  calling  minor  children

frequently  in  a  Chamber  by  Judges  was  not

proper  and  such  interviews  really  disturbed

them  rather  than  giving  them  a  respite  and relief.

80.  This  Court  reproduced  some  of  the

observations  of  learned  Judges  of  the  High

Court who had interviewed the minors. The Court

also considered sub-section (3) of Section 17

of  1890  Act  and  the  power  of  the  Court  to

interview a minor child with a view to consider

his/her preferences and observed;
  We may, however, point out that there
  cannot be any manner of doubt as to
  the Courts power of interviewing any
  minor for ascertaining the wishes of
  the minor, if the Court considers it
  so necessary for its own satisfaction
  in dealing with the question relating
  to the custody of the minor.

81.  Considering  the  facts  of  the  case,

however, the Court refused to undertake that exercise and stated;

  In the facts and circumstances of
  this case we are however, not inclined
  to interview the minor daughter, as we
  are satisfied in the present case that
  the minor is not fit to form an
  intelligent preference which may be
  taken into consideration in deciding
  her welfare. We have earlier set out
  in extenso the various orders passed
  by the various learned Judges of the
  Bombay High Court after interviewing
  the minor and the learned Judges have
  recorded their impressions in their
  judgments and orders. The impressions
  as recorded by the learned Judges of
  the Bombay High Court, go to indicate
  that the minor has expressed different
  kinds of wishes at different times
  under different conditions. It also
  appears from the report of the Social
  Welfare Expert that these interviews
  cast a gloom on the sensitive mind of
  the tender girl and caused a lot of
  strain and depression on her. Torn
  between her love for both her parents
  and the acrimonious dispute between
them resulting in the minor being
dragged from court to court, we can
well appreciate that the sensitive
mind of the minor girl is bound to be
sadly affected. Though the girl is
quite  bright  and  intelligent  as
recorded by the learned Judges of the
Bombay High Court in their orders
after their interviews with the girl
who is of a tender age and is placed
in a very delicate and embarrassing
situation because of the unfortunate
relationship and litigation between
her parents for both of whom she has
great deal of affection, she is not in
a position to express any intelligent
preference which will be conducive to
her  interest  and  welfare.  Mature
thinking is indeed necessary in such a
situation to decide as to what will
enure to her benefit and welfare. Any
child who is placed in such an
unfortunate position, can hardly have
the capacity to express an intelligent
preference  which  may  require  the
Courts consideration to decide what
should be the course to be adopted for
the  childs  welfare.  The  letters
addressed by the daughter to her
mother from Panchgani and also a
letter addressed by her to her aunt
(fathers sister) also go to show that
the minor cannot understand her own
mind properly and cannot form any firm
desire. We feel that sending for the
minor and interviewing her in the
present case will not only not serve
any useful purpose but will have the
effect of creating further depression
  and demoralisation in her mind.   (emphasis supplied)
82.  From  the  above  observations  and

particularly  the  italicized  portion,  it  is

abundantly  clear  that  in  peculiar  facts  and

circumstances  of  the  case,  this  Court  was

satisfied  that  calling  a  minor  girl  and

interviewing her several times had not only not

served any useful purpose but had the effect of

creating further depression and demoralization in her mind.

83.  In  the  instant  case,  on  overall

considerations we are convinced that the Courts

below were not right or justified in granting

custody  of  minor  Antariksh  to  Abhijit-

respondent herein without applying relevant and

well-settled principle of welfare of the child

as paramount consideration.  The trial Court

ought  to  have  ascertained  the  wishes  of

Antariksh as to with whom he wanted to stay.

84.  We  have  called  Antariksh  in  our

chamber.  To  us,  he  appeared  to  be  quite
intelligent.  When  we  asked  him  whether  he

wanted to go to his father and to stay with

him, he unequivocally refused to go with him or

to stay with him. He also stated that he was

very happy with his maternal grand-parents and

would like to continue to stay with them. We

are, therefore, of the considered view that it

would not be proper on the facts and in the

circumstances to give custody of Antariksh to

his father-respondent herein.

85.  For the foregoing reasons, the appeal

deserves  to  be  allowed  and  is  accordingly

allowed.  The  application  filed  by  the

respondent  Abhijit  for  custody  of  his  son

Antariksh is ordered to be dismissed. In view

of the facts and circumstances of the case,

however, there shall be no order as to costs.



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