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Habeas Corpus for girl child custody to Father

Supreme Court of India

CASE NO.:Appeal (civil) 6626 of 2004

PETITIONER:Sheila B. Das

RESPONDENT:P.R. Sugasree

DATE OF JUDGMENT: 17/02/2006

BENCH:B.P. Singh & Altamas Kabir

JUDGMENT:J U D G M E N T

The appellant, who is a paediatrician by profession,
was married to the respondent, who is a lawyer by
profession, on 29th March, 1989, at Thrissur in Kerala
under the provisions of the Special Marriage Act. A girl
child, Ritwika, was born of the said marriage on 20th
June, 1993.
 As will appear from the materials on record, the
appellant, for whatever reason, left her matrimonial home
at Thrissur on 26th February, 2000, alongwith the child
and went to Calicut without informing the respondent.
Subsequently, on coming to learn that the appellant was
staying at Calicut, the respondent moved an application
in the High Court at Kerala for a writ in the nature of
Habeas Corpus, which appears to have been disposed of
on 24th March, 2000 upon an undertaking given by the
appellant to bring the child to Thrissur.
On 24th March, 2000, the respondent, alleging that
the minor child had been wrongfully removed from his
custody by the appellant, filed an application before the
Family Court at Thrissur under Sections 7 and 25 of the
Guardians and Wards Act, 1890, and also Section 6 of
the Hindu Minority and Guardianship Act, 1956, which
came to be numbered as OP 193 of 2000 and OP 239 of
2000.
 Before taking up the said two applications for
disposal, the learned Judge of the Family Court at
Thrissur took up the respondents application for interim
custody of the minor child and on 27th April, 2000
interviewed the minor child in order to elucidate her
views with regard to the respondents prayer for interim
custody. No order was made at that time on the
respondents application for interim custody. On 20th
March, 2001, the learned Judge of the Family Court at
Thrissur took up the two applications filed by the
respondent under Sections 7 and 25 of the Guardians
and Wards Act and under Section 6 of the Hindu
Minority and Guardianship Act for final disposal. While
disposing of the matter the learned Judge had occasion
to interview the minor child once again before delivering
judgment and ultimately by his order of even date the
learned Judge of the Family Court at Thrissur allowed
the applicati16ons filed by the respondent by passing
the following order:-

1. The respondent is directed to give
custody of the child to the petitioner the
father of the child, the natural guardian
immediately after closing of the schools
for summer vacation.

2. The father shall take steps to
continue the study of the minor child in
CSM Central School Edaserry and steps
to restore all the facilities to the minor
child to enjoy her extra curricular
activities and studies also.

3. The respondent mother is at liberty
to visit the child either at the home of the
petitioner or at school at any time.

4. If the mother respondent shifts her
residence to a place within 10 kms.
radius of the school where the child is
studying the child can reside with the
mother for not less than three days in a
week. The petitioner father shall not,
object to taking of the child by the mother
to her own house in such condition.

5. The father the petitioner shall meet
all the expenses for the education, food
and cloths etc. of the minor child and the
mother of her own accord contribute to
the same anything for the child and the
father should not prohibit the mother
from giving the child anything for her
comfort and pleasant living.

6. If the mother the respondent fails to
stay within 10 kms. radius of the CSM
central School, Edasserry however she is
entitled to get custody of the child for 2
days in any of the weekend in a month
and 10 days during the Summer vacation
and 2 days during the Onam hoilidays
excluding the Thiruvonam day.

7. This arrangement for custody is
made on the basis of the prime
consideration for the welfare of the minor
child and in case there is any change in
the situation or circumstance affecting
the welfare of the minor child, both of the
parties are at liberty to approach this
court for fresh directions on the basis of
the changed circumstance.

OP 239/2000 is partly allowed
prohibiting the respondent husband by a
permanent injunction from removing or
taking forcefully the B schedule articles
mentioned in the plant. The parties in
both these cases are to suffer their costs.

Being dissatisfied with the order of the Family
Court, the appellant herein filed an appeal in the High
Court of Kerala, being M.F.A.No.365/01, wherein by an
order dated 21st May, 2001, the order of the Family Court
was stayed. The respondent thereupon filed an
application before the High Court for review of the said
order and in the pending proceedings, a direction was
given by the High Court to the Family Court at Calicut to
interview the minor child. The report of the Family Court
was duly filed before the High Court on 5th July, 2001.
From the said report, a copy of which has been included
in the paperbook, it is evident that the minor child
preferred to stay with her father and ultimately by its
order dated 25th July, 2001 the High Court vacated the
stay granted by it on 21st May, 2001.

On the application of the appellant herein, one Dr.
S.D. Singh, Psychiatrist, was also appointed by the High
Court on 14th September, 2001, to interview the
appellant and the respondent in order to make a
psychological evaluation and to submit a report. On
such report being filed, the High Court by its order dated
31st May, 2002, granted custody of the minor child to the
respondent till the disposal of the appeal.
Soon thereafter, in June 2002, the respondent filed
an application for divorce before the Family Court at
Thrissur. While the same was pending, the appellant
filed a Special Leave Petition being S.L.P.( C)
C.C.No.6954/2002 against the order of the High Court
granting custody of the minor child to the respondent till
the disposal of the appeal. The said Special Leave
Petition was dismissed on 9th September, 2002. The
appeal filed by the appellant before the High Court
against the order of the learned Judge of the Family
Court allowing the respondents application under
Sections 7 and 25 of the Guardians and Wards Act,
being M.F.A. No.365/01, was also dismissed on 16th
June, 2003. Immediately, thereafter, on 28th June,
2003, the Family Court granted divorce to the parties.
Being aggrieved by the dismissal of her appeal,
being M.F.A.No.365/01, the appellant herein filed the
instant Special Leave Petition, being SLP ) No.
18961/2003, which after admission was renumbered as
Civil Appeal No.6626/2004. On 20th July, 2004, the
appellant herein filed a petition in the pending Special
Leave Petition for interim visitation rights in respect of
her minor child for the months of August and
September, 2004. After considering the submissions
made by the appellant, who was appearing in person,
and the learned counsel for the respondent, this Court
passed the following order:-

This petition has been filed by the
mother of minor girl-Ritwika, aged about
12 years, challenging the impugned order
of the High Court dated 16th June, 2003.
By the impugned order the High Court
confirmed the order of the Family Court
holding that it is in the best interest of
the child that she be in the custody of the
father. The High Court, however,
permitted the petitioner to visit the child
at the house of the father once in a
month, that is, first Sunday of every
month and spend the whole day with the
child there with a further stipulation that
she will not be removed from the fathers
house. The petitioner and the
respondent have not been living together
since February, 2000. The divorce
between them took place by order dated
26th June, 2003.

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On question of interim custody, in
terms of the order dated 30th April, 2003,
the Family Court Trichur, was directed to
make an order regarding the visitation
rights of the petitioner for the months of
May, June and July, 2004 so that the
petitioner may meet her daughter at the
place of some neutral person and, if
necessary, in the presence of a family
counsellor or such other person deemed
just, fit and proper by the Family Court.
The Family Court was directed to fix any
two days, in months of May, June and
July of 2004, considering the convenience
of the parties, when the petitioner may be
in a position to spend entire day with her
child.

Pursuant to the above said order the
Family Court had fixed two days in the
months of May, June and July, 2004 so
that the petitioner could meet her
daughter on those days. The Family
Court directed that the said meeting shall
take place in the room of family
counsellor in Court precincts. According
to the petitioner the said arrangement
was not satisfactory, so much so that
ultimately she made a request to the
Family Court that instead of meeting her
daughter in the room of the family
counsellor, the earlier arrangement of
meeting her at fathers house was may be
restored. The Family Court, however, did
not modify the order having regard to the
orders passed by this Court on 30th April,
2004. It is, however, not necessary at
this stage to delve any further on this
aspect.

Ritwika is studying in 7th class in a
school in Trichur. Having heard
petitioner-in-person and learned counsel
for the respondent and on perusal of
record, we are of the view that without
prejudice to parties rights and
contentions in Special Leave Petition,
some interim order for visitation rights of
the petitioner for the months of August
and September, 2004 deserves to be
passed. Accordingly, we direct as under:

(1) The petitioner can visit the house of
the respondent at Trichur on every
Sunday commencing from 1st August,
2004 and be with Ritwika from 10.00
a.m. to 5.00 p.m. During the stay of the
petitioner at the house of the respondent,
only the widowed sister of the respondent
can remain present. The respondent
shall not remain present in the house
during the said period. It would be open
to the petitioner to take Ritwika for
outing, subject to the condition that
Ritwika readily agrees for it. We also
hope that when at the house of the
respondent, the petitioner would be
properly looked after, insofar as, normal
facilities and courtesies are concerned;

(2) We are informed that the school in
which Ritwika is studying shall be closed
for 7 days in the month of August, 2004
during Onam festival. It would be open
to the petitioner to take the child for
outing during those holidays for a period
of three days. After the expiry of three
days, it will be the responsibility of the
petitioner to leave the child at the house
of the respondent.

The arrangement about meeting on
every Sunday would also continue in the
month of September, 2004.

List the matter on 5th October,
2004

The question relating to the appellants visitation
rights pending decision of the Special Leave Petition came
up for consideration before this Court again on 5th
October, 2004, when on a reference to its earlier order
dated 20th July, 2004, this Court further directed that
the appellant would be at liberty to move appropriate
applications in M.F.A.No.365/01, which had been
decided by the High Court on 16th June, 2003, and the
High Court on hearing the parties or their counsel would
pass such orders as it considered appropriate in respect
of the interim custody of Ritwika during the Christmas
Holidays. It was also clarified that till the matter was
finally decided by this Court, it would be open to the
appellant to make similar applications before the High
Court which would have to be considered on its own
merits, since it was felt that the High Court would be in a
better position to consider the local conditions and pass
interim orders including conditions, if any, required to be
placed on the parties.
As mentioned hereinbefore, on leave being granted,
the Special Leave Petition was renumbered as Civil
Appeal No.6626/04, which has been taken up by us for
final hearing and disposal.
The appellant, who appeared in person, urged that
both the Family Court and the High Court had erred in
law in removing the minor child from the custody of the
mother to the fathers custody, having particular regard
to the fact that the minor girl was still of tender age and
had attained the age when a mothers care and
counseling was paramount for the health and well-being
of the minor girl child. The appellant submitted that
the minor child would soon attain puberty when she
would need the guidance and instructions of a woman to
enable her to deal with both physical and emotional
changes which take place during such period.
Apart from the above, the appellant, who, as stated
hereinbefore, is a doctor by profession, claimed to be in a
better position to take care of the needs of the minor in
comparison to the respondent who, it was alleged, had
little time at his disposal to look after the needs of the
minor child.

From the evidence adduced on behalf of the parties,
the appellant tried to point out that from morning till
late at night, the respondent was busy in court with his
own work and activities which left the minor child
completely alone and uncared for. According to the
appellant, the respondent who had a farm house some
distance away from Thrissur, spent his week- ends and
even a major part of the week days in the said farm
house. The appellant urged, that as a mother, she knew
what was best for the child and being a professional
person herself she was in a position to provide the minor
not only with all such comforts as were necessary for her
proper and complete upbringing, but also with a good
education and to create in her an interest in extra-
curricular activities such as music and dancing. The
appellant strongly urged that the respondent had never
had any concern for the minor child since her birth and
till the time when the appellant left with her for Calicut.
The appellant contended that for 7 years after the birth of
the minor child, the appellant had single-handedly
brought up the minor since the respondent was too pre-
occupied with other activities to even notice her.
According to the appellant, the minor child was extremely
happy to be with her till the respondent began to claim
custody of the minor and soon after obtaining such
custody, he was able to influence the minor to such an
extent that she even went to the extent of informing the
learned Judge of the Family Court that she preferred to
stay with her father.
 On this aspect of the matter, the appellant urged
that the minor had been exposed by the respondent to
what she termed as Parental Alienation Syndrome. She
urged that such a phenomenon was noticeable in
parents who had been separated and who are bent upon
poisoning the mind of their minor children against the
other party. According to the appellant, there could
otherwise be no other explanation as to why even after
being with the appellant for 7 years, the minor child had
expressed a preference to be with her father after she
was placed in his custody. The appellant laid stress on
her submissions that not only till the age of 8 years,
when custody of the minor child was given to him, but
even thereafter the respondent had all along been an
absentee father taking little or no interest in the affairs
and upbringing of the minor child. According to the
appellant, in view of the peculiar habits of the
respondent, the minor child was left on her own much of
the time, which was neither desirable nor healthy for a
growing adolescent girl child.
Urging that she had the best interest of the minor
child at heart, the appellant submitted that although
under the provisions of Hindu Law by which the parties
were governed, the father is accepted as the natural
guardian of a minor, there were several instances where
the courts had accepted the mother as the natural
guardian of a minor in preference to the father even when
he was available. Referring to Section 6 of the Hindu
Minority and Guardianship Act, 1956, which provides
that the natural guardian of a Hindu minor in the case of
a boy or an unmarried girl is the father and after him
the mother; provided that the custody of a minor who has
not completed the age of 5 years shall ordinarily be with
the mother, the appellant submitted that the aforesaid
provision had recognized the mother also as the natural
guardian of a minor. It was urged that in various cases
the Courts had considered the said provision and had
opined that there could be cases where in spite of the
father being available, the mother should be treated to
be the natural guardian of a minor having regard to the
incapacity of the father to act as the natural guardian of
such minor.
In support of her aforesaid submission, the
appellant referred to and relied on the decision of this
Court in Hoshie Shavaksha Dolikuka vs. Thirty Hoshie
Dolikuka, reported in AIR 1984 SC 410, wherein
having found the father of the minor to be disinterested
in the childs welfare this Court held that the father was
not entitled to the custody of the child.

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The appellant also referred to and relied on a
Division Bench decision of the Kerala High Court in the
case of Kurian C. Jose vs. Meena Jose, reported in
1992 (1) KLT 818, wherein having regard to the fact that
the father was living with a concubine who was none
else than the youngest sister of the mother, it was held
that the father was not entitled to act as the guardian of
the minor. On a consideration of the provisions of
Section 17 (3) of the Guardians and Wards Act, 1890, it
was also held that a minors preference need not
necessarily be decisive but is only one of the factors to be
taken into consideration by the court while considering
the question of custody.
Reference was also made to another decision of this
Court in the case of Kumar V. Jahgirdar vs. Chethana
Ramatheertha, (2004) 2 SCC 688, wherein in
consideration of the interest of the minor child, the
mother, who had re-married, was given custody of the
female child who was on the advent of puberty, on the
ground that at such an age a female child primarily
requires a mothers care and attention. The Court was
of the view that the absence of female company in the
house of the father was a relevant factor in deciding the
grant of custody of the minor female child.
The appellant urged that the courts in the aforesaid
cases had considered the welfare of the minor to be of
paramount importance in deciding the question of grant
of custody. The appellant urged that notwithstanding the
fact that the minor child had expressed before the
learned Judge of the Family Court that she preferred to
be with the father, keeping in mind the fact that the
welfare of the minor was of paramount importance, the
court should seriously consider whether the minor child
should be deprived of her mothers company during her
period of adolescence when she requires her mothers
counselling and guidance. The appellant submitted that
while the respondent had indulged Ritwika so as to win
over her affection, the appellant had tried to instill in her
mind a sense of discipline which had obviously caused
a certain amount of resentment in Ritwika. The
appellant submitted that the court should look behind
the curtain to see what was best for the minor girl child
at this very crucial period of her growing up
In support of her aforesaid submission, the
appellant referred to and relied on a decision of the
Bombay High Court in the case of Saraswatibai Shripad
Ved vs. Shripad Vasanji Ved, AIR 1941 Bombay 103,
wherein in a similar application under the Guardians
and Wards Act, it was held that since the minors
interest is the paramount consideration, the mother was
preferable to the father as a guardian. The appellant
emphasized the observation made in the judgment that if
the mother is a suitable person to take charge of the
child, it is quite impossible to find an adequate
substitute for her for the custody of a child of tender
years notwithstanding the fact that the father remains as
the natural guardian of the minor.
A similar view was expressed by this Court in the
case of Rosy Jacob vs. Jacob A. Chakramakkal, AIR
1973 SC 2090, wherein in the facts and circumstance of
the case, the custody of the daughter (even though she
was more than 13 years of age ) and that of the youngest
minor son, was considered to be more beneficial with the
wife rather than with the husband.
The appellant submitted that during the childs
growing years, she had from out of her own professional
income, provided her with amenities which a growing
child needs, including admission and tuition fees for the
childs schooling in a good school and for extra-
curricular activities. The appellant submitted that she
had made fixed deposits for the benefit of the minor and
had even taken out life insurance policies where the
minor child had been made the nominee. The appellant
submitted that apart from the above, she had also made
various financial investments for the benefit of the minor
so that the minor child would not be wanting in
anything if she was allowed to remain with the appellant.
The appellant submitted that although she had
been granted visitation rights by the different interim
orders, since she was residing in Calicut and the
respondent was residing in Thrissur, she was unable to
remain in contact with her minor daughter on account of
the distance between Calicut and Thrissur. In fact, the
appellant complained of the fact that on several
occasions when she had gone to meet her minor child at
the residence of the respondent, she had not been
allowed to meet the child or to spend sufficient time
with her. The appellant submitted that the interest of
the minor child would be best served if her custody was
given to the appellant.
The claim of custody of the minor child made by the
appellant was very strongly resisted by the respondent
who denied all the various allegations levelled against
him regarding his alleged apathy towards the minor and
her development. It was submitted on his behalf that till
the age of 7 years, the child had been living with both the
parents, and was well cared for and looked after during
this period. The minor child was suddenly and
surreptitiously removed from the respondents custody
by the appellant who left her matrimonial home on 26th
February, 2000 without informing the appellant who had
gone out of Thrissur on his professional work. It was
submitted that only after coming to learn that the
appellant had removed the child to Calicut that the
respondent was compelled to file a Habeas Corpus
Petition in the Kerala High Court which ended upon an
undertaking given by the appellant to bring the minor
child to Thrissur. It was only thereafter that the
respondent was compelled to file the application under
Sections 7 and 25 of the Guardians and Wards Act and
under Section 6 of the Hindu Minority and Guardianship
Act,1956.
According to the respondent, even though the
appellant had forcibly removed the minor to Calicut,
thereby depriving the respondent of the minor childs
company, the said minor during her interview by the
learned Judge of the Family Court at Thrissur made her
preference to be with the father known to the learned
Judge.

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On behalf of the respondent, it was also submitted
that keeping in mind the fact that the girl child was
attaining the age of puberty, the respondent had
arranged with his elder sister, who was a retired
headmistress of a school, to come and stay with him and
to attend to the minors needs during her growing years
when she required the guidance and counselling of a
woman. It was submitted that the said aspect of the
matter was duly considered by the Family Court as well
as by the High Court on the basis of an affidavit filed by
the respondents sister expressing her willingness to stay
with the respondent to look after the minor child.
In addition to the above, it was submitted on behalf
of the respondent that the Court had found on evidence
that he had sufficient finances to look after and provide
for all the needs of the minor child. In any event, what
was of paramount importance was the welfare of the
minor and the court had also taken into consideration
the preference expressed by the minor in terms of
Section 17 (3) of the Guardians and Wards Act, 1890.

On behalf of the respondent it was submitted that
the respondent was quite alive to the fact that the minor
child should not be deprived of her mothers company
and that for the said purpose, the appellant was welcome
to visit the minor child either at the respondents house
or in some neutral place and to even keep the child with
her on specified days if she was ready and willing to stay
with the appellant. What was sought to be emphasized
on behalf of the respondent was that in the interest of
the child she should be allowed to remain with him
since he was better equipped to look after the minor,
besides being her natural guardian and also having
regard to the wishes of the minor herself.
Having regard to the complexities of the situation
in which we have been called upon to balance the
emotional confrontation of the parents of the minor child
and the welfare of the minor, we have given anxious
thought to what would be in the best interest of the
minor. We have ourselves spoken to the minor girl,
without either of the parents being present, in order to
ascertain her preference in the matter. The child who is
a little more than 12 years of age is highly intelligent,
having consistently done extremely well in her studies in
school, and we were convinced that despite the tussle
between her parents, she would be in a position to
make an intelligent choice with regard to her custody.
From our discussion with the minor, we have been able
to gather that though she has no animosity as such
towards her mother, she would prefer to be with the
father with whom she felt more comfortable. The minor
child also informed us that she had established a very
good relationship with her paternal aunt who was now
staying in her fathers house and she was able to relate
to her aunt in matters which would concern a growing
girl during her period of adolescence.
We have also considered the various decisions
cited by the appellant which were all rendered in the
special facts of each case. In the said cases the father
on account of specific considerations was not considered
to be suitable to act as the guardian of the minor. The
said decisions were rendered by the Courts keeping in
view the fact that the paramount consideration in such
cases was the interest and well-being of the minor. In
this case, we see no reason to consider the respondent
ineligible to look after the minor. In fact, after having
obtained custody of the minor child, the respondent does
not appear to have neglected the minor or to look after
all her needs. The child appears to be happy in the
respondents company and has also been doing
consistently well in school. The respondent appears to
be financially stable and is not also disqualified in any
way from being the guardian of the minor child. No
allegation, other than his purported apathy towards the
minor, has been levelled against the respondent by the
appellant. Such an allegation is not borne out from
the materials before us and is not sufficient to make
the respondent ineligible to act as the guardian of the
minor.

We, therefore, feel that the interest of the minor will
be best served if she remains with the respondent but
with sufficient access to the appellant to visit the minor
at frequent intervals but so as not to disturb and disrupt
her normal studies and other activities. We,
accordingly dispose of this appeal by retaining the order
passed by the learned Judge of the Family Court at
Thrissur on 20.3.2001 while disposing of
O.P.No.193/2000 filed by the respondent herein under
Sections 7 and 25 of the Guardians and Wards Act,
1890 with the following modifications:-

1. The respondent shall make arrangements for
Ritwika to continue her studies in her present
school and to ensure that she is able to take part in
extra-curricular activities as well.

2. The respondent shall meet all the expenses of the
minor towards her education, health, care, food and
clothing and in the event the appellant also wishes
to contribute towards the upbringing of the child,
the respondent shall not create any obstruction to
and/or prevent the appellant from also making
such contribution.

3. The appellant will be at liberty to visit the minor
child either in the respondents house or in the
premises of a mutual friend as may be agreed upon
on every second Sunday of the month. To enable
the appellant to meet the child, the respondent
shall ensure the childs presence either in his house
or in the house of the mutual friend agreed upon at
10.00 A.M. The appellant will be entitled to take
the child out with her for the day, and to bring her
back to the respondents house or the premises of
the mutual friend within 7.00 P.M. in the evening.

4. In the event the appellant shifts her residence to
the same city where the minor child will be staying,
the appellant will, in addition to the above, be
entitled to meet the minor on every second Saturday
of the month, and, if the child is willing, the
appellant will also be entitled to keep the child
with her overnight on such Saturday and return
her to the respondents custody by the following
Sunday evening at 7.00 P.M.

5. The appellant, upon prior intimation to the
respondent, will also be entitled to meet the minor
at her school once a week after school hours for
about an hour.

6. The appellant will also be entitled to the custody of
the minor for 10 consecutive days during the
summer vacation on dates to be mutually settled
between the parties.

7. The aforesaid arrangement will continue for the
present, but the parties will be at liberty to
approach the Family Court at Thrissur for fresh
directions should the same become necessary on
account of changed circumstances.

The parties will each bear their own costs.


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