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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.04.2019

CORAM:

THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR. JUSTICE M.VENUGOPAL

C.M.A.No.2249 of 2015
M.P.No.1 of 2015

Dr.V.Sridevi .. Appellant

vs.

Dr.C.S.Mani .. Respondent

Prayer: The Civil Miscellaneous Appeal is filed under Section 19 of the
Family Courts Act, against the order passed by the IIIrd Additional Family
Court at Chennai in I.A.No.3648 of 2011 in O.P.No.3499 of 2009, dated
20.07.2015.

For Appellant : Mr.A.Thiyagarajan,
Senior Counsel
for Mr.L.Chandrakumar

For Respondent : Mr.N.G.R.Prasad
for M/s.Row Reddy

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JUDGMENT

(Judgement of this Court was made by S.MANIKUMAR, J.)

Aggrieved by order dated 20.07.2015 made in I.A.No.3648 of 2011

in O.P.No.3499 of 2009, on the file of the III Additional Family Court,

Chennai, the present appeal has been filed.

2. For the sake of convenience, the parties are referred to as

father and mother.

3. Facts leading to the appeal are as follows:

Marriage between the parties was solemnised on 23.06.2000,

as per the Hindu Rites and Customs and it was registered in the Office of

the Registrar, Erode. Out of the wedlock, a male child was born.

Differences of opinion arose between them and they lived separately

from 26.09.2004. Hence, finding that there is no chance of reunion, the

Family Court in F.C.O.P.No.3499 of 2009, dated 10.11.2009, has granted

a decree of divorce by mutual consent. Custody of the child was given to

the appellant-mother. Visitation rights were given to the respondent-

father, as follows:

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“The first petitioner (mother) shall have the custody of
male child Siddarth. The second petitioner (father) shall take
the child Sidddarth from 1.11.2009 to March 2010 at 9 a.m
and leave the child back with the first petitioner by 7 p.m on
alternative Sundays.

From 1.4.2010 to 30.9.2010 the second petitioner shall
take the child Siddarth on alternative Saturday evening at

7.p.m and leave the child back with the first petitioner by 7
p.m on Sunday i.e next day.

From 1.10.2010 the second petitioner shall take the
child Siddarth on alternative Friday evening at 7 p.m and
leave the child back with the first petitioner by 7 p.m on
Sunday.

During summer vacation, the second petitioner shall
take the child Siddarth for two weeks and have the custody
of the child with him for that period and they are free to
travel for an holiday.

During Dusshera vacation, the second petitioner shall
take the child Siddarth for three days and have the custody
of the child with him for that period.

During festival holidays Pongal and Deepavali, the
second petitioner shall take the child Siddarth(Alternative
year) on the previous day evening and leave the child with
the first petitioner on the evening of the following day.

On the birth day of the child, the second petitioner

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shall take the child Siddarth on the previous day evening and
leave the child with the first petitioner on the following day
evening. If the birthday happens to be a school working day,
the second petitioner should drop the child at the school in
the morning itself.”

4. According to the respondent-father, mother had failed to

adhere to the terms of mutual consent. Since the child was under her

control, she has considerable influence on him. She got married in March’

2010 and from July’ 2010 onwards, she did not allow him to see his son.

Hence, he was compelled to send a legal notice on 9.8.2010.

5. On 18.09.2010, the appellant-mother sent a reply, stating

that father was not visiting the child. Father had no other option, except

to file I.A.No.2779/2010 to bring the child, either to Child Care Centre or

a common friends place. On 31.01.2011, Family Court directed the

appellant-mother to bring the child on 5.2.2011 and on the said date,

she brought the child to the Family Court Child Care Centre. It was

represented that she was not against the father, seeing the child, but it

was the child, who was not willing to go with the father. According to the

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respondent-father, in an interview, the child expressed his willingness to

meet him and hence, the court directed the respondent to bring the

child Siddarth to the Family Court Child Care Centre, on every

alternative Sundays.

6. Thereafter, on 29.3.2011 and 10.4.2011 the child was

brought to the Child Care Centre. But on 24.4.2011, mother has failed to

bring the child and therefore, the matter was adjourned to 25.6.2011.

According to the respondent-father, since the behaviour of the child was

not natural, the then Presiding Officer decided to refer the parties to

visit Dr.Jayanthi, psychiatrist. Mother met the Doctor with the child. The

psychiatrist filed her report on 17.08.2011. Respondent-father has filed

his objections to the report. Mother wanted long adjournment, as she

was going to United States of America and hence, the case was adjourned

to 4.11.2011 and thus, the father could not see the child. However, a

direction was issued to bring the child to the Child Care Centre on

22.10.2011. But the same was not done, by giving instructions that the

child should not be sent, in her absence. The then Presiding Officer sent

a counsellor to facilitate the father to visit the child, at the mother’s

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parents house. The child willingly came to the father, when the

counsellor requested for the child to be produced, after some hesitation,

child’s grandmother shadowed the child and the counsellor observed that

his heart beat became fast. Then, the father took his son to the car park

and spent few minutes with him and handed over gifts to him.

7. After the decree of divorce, on 19.11.2011, I.A.No.3648 of

2011 has been filed by the father, to modify the order, dated 10.11.2009

in O.P.No.3499 of 2009, permitting him to take the custody of his son,

Siddarth, with visitation rights to the mother. In the supporting affidavit,

respondent-father has contended that the appellant-mother had been

brain washing the child, because the child was normal with others and

was not normal, when it came to the natural father. All this could have

been avoided, if the father had the share in the custody of the child.

Then the mother filed a transfer petition, on the ground that the then

Presiding Officer was biased. Mother has not allowed the father to see

the child, as per the decree and she dragged on the proceedings, by

saying that she is busy in her profession. Mother had married a person,

who has grown up children and it would not be healthy for his son to be

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brought up in that atmosphere, where the child would not be able to get

the same attention, which the father would give. Absolutely, there is no

difficulty for him and his parents to take care of the child and also make

arrangements to take him to the school and bring him back. It would not

be fair for the child, Siddarth, to be with the step father, when the

natural father is longing to give full attention and care to the child.

8. Denying the averments made in the petition, appellant-

mother has contended that the father has no interest to visit the child

and he was most irregular in visiting the child. Sometimes, he would not

turn up on the scheduled day and he never cared to inform her. For the

past three years and more, child Siddarth is reluctant to go and meet the

father and in fact, the child refused to go out and talk with him, despite

her repeated persuasion to go and meet him and she had no control and

influence over the child. She sent a suitable reply, dated 18.9.2010, for

the notice issued by the husband on 9.8.2010. In order to harass her,

father has filed I.A.No.2779/2010, to bring the child to the Child Care

Centre in the High Court Campus or to a common place. She had filed a

detailed counter, stating that there is no necessity to modify the terms

and conditions of the order.

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9. The appellant has further submitted that on 05.03.2011, the

then Presiding Officer met the child in the chamber on two occasions.

After spending sufficient time with the child, he asked the child to be

brought to the Child Care Centre, as an interim arrangement to assess

the behaviour of the child, in the presence of his father. The child, on

hearing that he should see his father, shed tears. However, as advised by

the then Principal Judge, the child was brought to the Child Care Centre

on 29.3.2011, 10.4.2011 and 24.4.2011 respectively. On 29.3.2011, the

child literally cried on seeing his father, even though she was present.

For the next two visits, father was alone with the child in the Child Care

Centre, the child was requested to talk and play with his father.

However, the then Presiding Officer, took judicial notice of the child’s

reluctant behaviour with his father, referred the child to a psychiatrist at

Children Hospital, Egmore, for psychiatrist test report. After rigorous

psychiatrist tests, on personality and diagnostic assessment, the

psychiatrist submitted her report to the court directly. The report was

apparently in favour of the appellant-mother.

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10. Mother has further contended that as she had to go to America

to attend to some important medical conference and it was very difficult

to bring seven years old child to the court in her absence and hence, the

child was sent to her parents’ house. Thereafter, she brought the child to

the Court on 25.6.2011 and the then Presiding Officer, without giving any

opportunity to the child to accustom himself to the court environment,

informed the parties that when he asked the child “ whether the mother

is preventing him from seeing and talking with the father, the child shook

his shoulders in the affirmative”. However, the psychiatrist in the report,

has clearly mentioned that same, that whenever the child wanted to

avoid any question or not interested to answer the question, he used to

shake his shoulders. Appellant has contended that the Presiding Officer

has mistook the child’s body language. The then presiding officer had

been very lenient towards the father and his counsel, for the reasons

best known to him. Therefore, she was constrained to file a transfer

petition.

11. Appellant in her counter affidavit, has further contended that

the child never stayed with the father, except as an infant for two

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months, ie., from 15.7.2004 to 26.9.2004. During the year 2008-2009,

the maximum time spent by the father with the child was for about three

hours between 10.00 a.m to 1.00 p.m and that too, for very few visits

only. The child refused to go with the father from the last week of

March’ 2009, despite persuasion. Even in the Child Care Centre, the child

refused to move or talk with his father. On 3.1.2013, when the Presiding

Officer spoke to the child alone in the chamber, the child has clearly

informed that he is not interested to talk or move with his father and

clearly expressed his willingness in clear language to the court that he

wants to be with his mother.

12. Appellant-mother has further contended that she along with

her husband and her son, Siddarth, are living peacefully. Her husband’s

children are studying in Australia and Pondicherry respectively and

therefore, her the attention and care are exclusively, towards her son,

Siddarth only. It was clearly agreed between the parties that mother

should be entitled to have permanent custody of the child and father is

entitled only for visitation rights of the child, subject to willingness of

the child. If the child is not interested to go or see his father, then he has

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no legal right to force the child to come and live with him. She also

cannot be forced the child to go against his wish and will. Welfare of the

child is the paramount consideration for deciding the custody, as well as,

visitation rights of the child. The petition to modify the decree of

divorce, has been filed only to harass the appellant-mother and hence,

she prayed to dismiss the petition.

13. Before the Family Court, father examined himself as PW1

and marked 18 documents, viz., Ex.P1 – Prescription given by Dr.Lekshmi

Vijayakumar, dated 8.8.2013, Exs.P2 to P4 – Letters, dated 10.5.2006,

17.5.2006 30.5.2006, sent by the wife to the Advocates of the

husband, Ex.P5 – Court certified xerox copy of Fair and Decreetal order

in O.P.No.3499/2009, dated 10.11.2009, Ex.P6 – Copy of legal Notice

sent by the husband to wife, dated 30.4.2012, Ex.P7 – Reply notice by

the wife, to the counsel of husband, Ex.P8 – Copy of notice sent by the

husband to the advocate of the wife, dated 14.5.2012, Ex.P9 – Rejoinder

notice sent by the wife to the husband, dated 24.5.2012, Exs.P10 P11

– Personal dairy of the wife, Exs.P12 P14 – Pendrive, Ex.P13 – Photos

of the husband and his family, with minor son Siddarth with parents of

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the husband, Ex.P15 – Copy of Legal notice sent by the husband to the

wife, dated 9.8.2010, Ex.P16 – Copy of notice sent by the wife to the

husband, dated 18.9.2010, Ex.P17 – Copy of notice by the husband to

advocate of wife, dated 23.9.2010 and Ex.P18 – Copy of legal notice sent

by the wife to the husband, dated 7.10.2010. Wife examined herself as

RW.1 and marked Ex.R1 – Photo copy of progress report of the child,

Siddarth for the period 2010-2011, Ex.R2 – Photo copy of Winner

Certificate issued to minor Siddarth regarding football game, Ex.R3 –

Photo copy of Winner Certificate issued to Siddarth for basket ball game,

Ex.R4 – Photo copy of certificate issued to Siddarth for 7th All India Open

Karate Championship and Ex.R5 – Photo copy of Certificate issued to

Siddarth during Inter-house culturals 2013-2014.

14. On the averments of the parties, two points, raised by the

Family Court, are as follows:

“(1) Whether the petitioner is entitled to get
relief as prayed in the petition filed for custody of his minor
child Siddarth ?

(2) To what relief the petitioner is entitled?”

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15. The IIIrd Additional Family Court, Chennai, in I.A.No.3648 of

2011 in O.P.No.3499 of 2009, dated 20.07.2015, has passed the following

orders,

“The factom of dissolution of marriage by mutual
consent is admitted by both the parties. In the decree of
mutual consent itself both parties agreed for certain terms
regarding custody and visitation of the child. Petitioner
contented that respondent failed to comply the terms and
conditions laid down in the decree, hence petitioner is
forced to file petition for visitation right that is to visit the
child in the Child Care Centre and even after that petition
also respondent failed to permit the petitioner to visit the
child as per the order the court hence petitioner is
constrained to file this petition. Respondent contented that
the child does not want to go with the father as per the
terms and conditions of the decree, respondent never stand
on the way of the petitioner to visit the child, and with a
view to harass the respondent petitioner has filed this
petition.

17. This petition is filed to modify the custody and
visitation rights stated in the fair and decreetal order for
divorce by mutual consent. Since the petitioner has come
forward with this petition to modify the custody and
visitation right of the child the welfare of the child is the

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sole and single yardstick deciding custody of minor children
and court has to use such yardstick for assessing merits of
parties seeking custody. Respondent contented that
contracting second marriage cannot disentitled the
respondent having custody of the minor son. It is not
denied by the respondent that after divorce by mutual
consent she got remarriage and her husband is already
having two grown up children. The second marriage of the
respondent though a factor that cannot disentitle the
respondent to the custody of the child yet is an important
factor to be taken into account. It may not be appropriate
to place the child in a predicament where they have to
adjust with their step father with whom admittedly the
child had not spent much time.

18. Both parties admitted that the age of the minor
son is 11 years old at present. So the minor child is nearing
his adolecent age. If the child of the petitioner is a girl baby
then the female child always needs the help of her mother.
Whereas in this petition the child is a boy who is at age of
11 years. Usually the boys when they reaches adolecent age
they want to share lot of things with their father as a friend
and the father also must treat the male child as his friend.
Even though respondent contented that the step father of
the minor son is taking care of the boy, considering the
status of petitioner the and age and the welfare of the

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minor son petitioner herein also can give equally good
education and affection to the minor child. Furthermore
being the biological father petitioner can give more
comforts to the minor son. It is not denied by the
respondent that petitioner is still not getting married. This
is the right age of a boy to be under the care and custody of
a father. Hence for the aforesaid reasons and considering
the paramount welfare of the minor boy it is held that
petitioner is entitled to get modification of the order
relating to custody and visitation right and point no.1 is
answered accordingly in favour of the petitioner.

19. Point No.2.

In the result, petitioner is permitted to take the
custody of his minor son Siddarth from the respondent, the
respondent herein is directed to handover the custody of
minor Siddarth to the petitioner within two months from the
date of this order, respondent herein is permitted to visit
minor Siddarth on 2nd and 4th Saturday of every month in the
Child Care Centre, Family Court, Chennai between 2.00 p.m
to 5.00 p.m, the petitioner herein is directed to bring minor
Siddarth to the Child Care Centre , Family Court on 2 nd and
4th Saturday of every month between 2.00 p.m to 5.00 p.m
and the fair order and decreetal order dated 10.11.2009 in
O.P.No.3499/2009 is modified accordingly regarding the
custody and the visitation right of minor Siddarth and this

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petition is allowed accordingly. Both parties do bear their
own costs.”

16. Aggrevied by the abovesaid order, the present appeal has

been filed on various grounds.

17. Mr.A.Thiyagarajan, learned Senior Counsel for the appellant

submitted that the marriage was solemnized on 23.06.2000, child

Siddarth, was born on 11.04.2004. Due to difference between the

spouses, appellant left the matrimonial home on 26.09.2004.

O.P.No.1674 of 2006, was filed the appellant/mother for divorce.

Thereafter, O.P.No.3499 of 2009, was filed for divorce, by mutual

consent. On 10.11.2009, a decree for mutual divorce was granted, giving

custody to the mother, with weekly visitation rights to the father. In June

2010, the appellant got remarried. I.A.No.2779 of 2010 was filed in

October’ 2010, to modify the order dated 10.11.2009 and to direct the

appellant to bring the child to the Family Court Children Care Centre,

Chennai or such other common place, as the Court deems fit.

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18. Learned Senior Counsel appearing for the appellant further

submitted that the Family Court went miserably wrong in not

ascertaining the minor boy’s preferences by speaking to him personally.

On earlier two occasions, two predecessor Family Court judges called the

minor child to the Chambers and ascertained his wishes. On both the

occasions, the minor child expressed his disinclination to go with the

father. In this connection, the learned Senior Counsel, invited attention

to the order passed in IA 2799/2010 dated 19.4.2013.

19. Learned Senior Counsel for the appellant further submitted

that the minor child was always consistent, in his preferences, and

therefore, it was all the more necessary that the Family Court, ought to

have called the boy personally and enquired his wishes, before passing

any orders, regarding the change in custody. According to him, the

Hon’ble Supreme Court of India time and again in various judgments has

consistently taken the view that, it is mandatory for the Family

Court/Trial court, to speak to the minor child to ascertain his/her wishes

and act accordingly.

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20. Learned Senior Counsel further submitted that the Family

Court has miserably failed to take note of the Psychometric Evaluation,

which would clearly reveal that the Evaluation was done by an expert

doctor, appointed by the court in 2011, at the instance of the

respondent/father. The evaluation was carried out, in several sittings,

individually, with the minor child and with the parents. Psychometric

Evaluation were marked as Exs.C1 and C2. According to the learned

Senior Counsel, the said Psychometric Evaluation clearly revealed that

the minor child is of above average intellect and quite comfortable in his

present surroundings. But the Family Court, did not take note of this

crucial evidence which by itself, would establish that the minor child was

happy and comfortable with the mother and that there was no need for

ordering change in custody. The only reason given by the Family Court for

ordering change of custody viz., that the boy child would be comfortable

with the natural father, rather than with the mother, which according to

the learned Senior Counsel for the appellant/mother, is wholly unsound,

illogical and baseless finding and that the said finding is without any

legal or factual backing. According to the learned Senior Counsel, the

Family Court ought to have duly considered and appreciated the expert

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report of the Psychometric Evaluation, averments in the counter

statement of the appellant-mother, and the minor boy’s clear

preferences as recorded by the Family Court, on two previous occasions.

21. Learned Senior Counsel for the appellant submitted that

ordering change in custody, at this point of time will cause mental and

emotional stress to the minor child. Accordig to him, right from his birth,

minor child was with the appellant-mother, who has nurtured and

brought him up. Therefore, giving due consideration to the evidence on

record, the order changing the custody, at the age of 12 years, to the

father with whom the minor child, never lived, would cause untold

mental strain and stress on the child, and that the same would affect the

career of the child.

22. According to the learned senior counsel for the appellant

even though the child was brought to the family court centre, the child

did not interact with the father. Family court judges have seen the child.

It is stated that on 05.03.2011, the presiding officer interacted with the

child. On 25.06.2011, the presiding officer posed certain questions to the

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child and subsequently, referred the child for psychological evaluation of

the minor Siddharh, then aged 7 years.

23. Taking this Court through the report of the Psychiatrist,

Mr.A.Thiyagarajan, learned senior counsel submitted that the said expert

has made a categorical conclusion that appellant/mother, was not

interfering or influencing the child. He further submitted that the said

expert has concluded on the basis of several tests and that as per the

report, minor Siddarth was not prevented by appellant/mother.

24. Mr.A.Thiyagarajan, learned Senior Counsel, took us through

the entire report and submitted that child was aware of what he had

answered to the querries made by the Psychiatrist and after due

psychological evaluation, a detailed report, was submitted to the Family

Court. He further submitted that after the report came to be filed,

respondent/father filed application in I.A.No.3648 of 2011 to modify the

order/decree dated 10.11.2009 in O.P.No.3499 of 2009 permitting him to

take the custody of minor Siddarth with visitation rights to the mother. In

the said application, respondent/father contended that, during interview

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by the presiding officer, the child had expressed that his mother did not

want the child to see the father, behavior of the child was not normal,

mother was brain washing the child and that is why the psychological

evaluation was ordered.

25. Referring to the counter affidavit filed by the

appellant/mother, learned Senior Counsel for the appellant submitted

that pursuant to the visitation rights, granted to the respondent/father

during the year 2008-09, the maximum time spent by the father, with the

child, was about 3 hours between 10 am to 1.00 pm and that too, for

very few visits only. According to the appellant, the child refused to go

with the father from the first week June, 2009, despite persuasion. The

child was brought up by the appellant/mother and her family members

alone. Even at the Child Care Centre, the child refused to move or talk

with the father. On 03.01.2013, the presiding officer spoke to the child

alone in the chamber, in the absence of the parties and their respective

counsel, to assess the child preference, but the child had clearly

informed the judge that he is not interested to talk or move with the

father and thus, clearly expressed that he wanted to be with the mother.

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26. Mr.A.Thiyagarajan, learned senior counsel further submitted

that though the appellant was married to another person, who is a

doctor, his children were grown up. Minor Siddarth, her married husband

are living peacefully. Elder son of the step father was studying in

Australia and the younger one was Pondicherry. At this juncture, he

submitted that the younger son was in Nagercoil. Their love, affection

and attention was exclusively towards minor son Siddharth and this fact

is not disputed. He further submitted that remarriage, by itself, would

not disentitle a person from continuing to have the custody of a minor

child.

27. In support of his contention that the Presiding Officer had

examined Minor Siddarth, Mr.A.Thiyagarajan, learned senior counsel drew

the attention of this court, to paragraph No.10 of the order made in IA

No.2799/2010 in O.P. No.3499/2010 dated 19.04.2013, wherein, the

Presiding Officer has recorded as hereunder:

“Even this court could understand that the boy was not
inclined to see his father, when this court had a talk to the
boy.”

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He further submitted that when the Presiding Officer in the year 2013,

talked with the child, and ascertained, child was not willing to see his

father and thus, there is no change since then.

28. Inviting the attention of this court, to the settled legal

proposition of law that paramount interest and welfare of the child,

should be the consideration of the courts, while deciding the custody of a

child, vis-a-vis, the rights of the parents or others, Mr.A.Thiyagarajan,

learned senior counsel submitted without giving due consideration to the

above, Family Court Judge, Chennai, has passed the order impugned.

29. Learned Senior Counsel further submitted that unless there

are exceptional circumstances, not conducive to the welfare of the child,

there is no reason, to tilt the custody of the child to the respondent.

Learned senior counsel further submitted that the conclusion of the

Presiding Officer, Family Court, as to the age of the boy and should be

under the care and custody of the father, cannot be said to be a valid

reason. He further submitted that the learned Judge has included a new

proposition that usually boys, when he reach adolescent age, they would

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share lot of things with their father, and the father also should treat the

male child as his friend and therefore, custody has to be reversed, is

erroneous.

30. According to the learned Senior Counsel, there is no such

theory or proposition of law, expressed by the Presiding Officer, Family

Court, to order custody to the respondent, in considering the paramount

welfare of a male child. He further submitted that the Presiding Officer

has failed to consider that mere status of the respondent/father, alone

cannot be the reason for reversing custody. According to him, appellant

is also a qualified doctor. She can also give good education to the child.

Evidence produced before the Family Court would prove that the

appellant has provided good education and all comforts. Therefore, the

conclusion of the Presiding Officer that being a biological father,

respondent can give good education, affection and more comforts, is

erroneous, because the same comfort education and affection, have

been given by a biological mother, with whom the Minor child, have been

living from the date of birth, till the petition was heard and decided i.e.

for nearly 11 years, after the birth of the child.

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31. Placing reliance on the decisions in Kumar v. Jahgirdar v.

Chethana Ramatheertha reported in 2004 (2) SCC 688; Sheila B. Das v.

P.R.Sugasree reported in 2006 (3() SCC 62; SectionLekha v. P.Anil Kumar

reported in 2006 (13) SCC 555; SectionMausami Moitra Ganguli v. Jayant

Ganguli reported in 2008 (7) SCC 673; SectionAnjali Kapoor v. Rajiv Baijal

reported in 2009 (7) SCC 322; SectionAthar Hussain v. Syed Siraj Ahmed

reported in 2010 (2) SCC 654; SectionVikram Vir Vohra v. Shalini Bhalla

reported in 2010 (4) SCC 409; SectionGaytri Bajaj v. Jiten Bhalla reported in

2012 (12) SCC 471, Learned Senior Counsel appearing for the appellant-

mother, submitted that the order of the Family Court in I.A.No.3648 of

2011 in O.P.No.3499 of 2009, dated 20.07.2015, requires reversal.

32. Mr.N.G.R.Prasad, learned counsel for the respondent/father

submitted that the central question to be considered by this court, is the

paramount interest and welfare of the child. According to him, the

appellant/mother left the matrimonial home within three months from

the date of marriage. Child was in continuous custody with the mother.

Attitude of the mother was refusal to allow the visitation rights.

Mother/appellant was responsible for the hostile attitude of the child

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and she was brainwashing the child. Changing the attitude of the child is

not in the welfare of the child. He further submitted that the then

Presiding Officer met the child in his Chambers, on two occasions and

tried to assess the child in the presence of his father, child was really

interested to see the father and shed tears.

33. Inviting the attention of this court to the photographs,

learned counsel for the respondent/father that child was happy with the

father and his grandparents. Taking this court through the entries in the

diary of the appellant, Mr.N.G.R.Prasad, learned counsel for the

respondent/father submitted that, even before divorce,

appellant/mother had made up her mind to bring up the child, only as a

single parent and refused to have not only the child rights, as well as

father’s rights. At this juncture, he invited the attention to the diary

extracts, wherein, it is stated to be recorded as hereunder:

“Delivery and a possible divorce. The child may be a
distraction. It is difficult to tell. I am of course prepared
(since October 2003) about the fact. I will be a single parent
caring for my child. He wants C.S.Siddhartha. I refused to
have his father.”

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Referring to the entries in the appellant diary, he further added that the

appellant never liked the father, from the incpetion, but denied

visitation rights of the respondent/father.

34. Inviting the attention of this court to the letter, dated

17.05.2006 of the appellant, learned counsel for the respondent/father

submitted that the appellant was restricting, even the number of hours

of visitation, ie., only for half an hour and in this context, referred to

another letter dated 30.5.2006. According to him, with half an hour

time, respondent/father, cannot be expected that love and affection, be

developed by the child towards his father/respondent and thus the

appellant has been preventing the respondent/father from exercising his

visitation rights. According to him, the language in the notices of the

appellant is nothing but, a premordial right of exercising right of custody

of the child, exclusively with the appellant by herself, to the exclusion of

father/respondent. According to him, if natural rights of the child, are

restricted, by brainwashing, it is not in the best interest of the child.

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35. Learned counsel for the respondent/father submitted that

the attitude of the appellant/mother, in preventing the father, from

exercising his visitation rights, could be deduced and that she has acted,

not only detrimental to the interest of the child, but also against the

interest of the natural father, and thus created an imbalance between

father and child. According to Mr.N.G.R.Prasad, learned Senior Counsel, if

the appellant had not violated the custodial rights, or abused her rights

over the child, all these things would not have happened. The child

would not have changed his attitude and would have continued to have

his love and affection of his father, which the father, has.

36. According to Mr.N.G.R.Prasad, learned Senior Counsel, it is a

pernicious argument that the child would not have love and affection to

his father. Learned counsel for the respondent/father further submitted

the need to file I.A. No.3648/2011 in O.P. No.3499/2009, was due to the

attitude of the appellant, who denied even the visitation rights,

brainwashed the child, due to her undue influence, which has manifested

in the attitude and change of the child.

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37. Referring to the report of the Psychiatrist, Mr.N.G.R.Prasad,

learned counsel for the respondent/father submitted that though the

Psychiatrist has examined mother, respondent/father was not examined.

Taking this court through the report, learned counsel for the respondent,

submitted that the child was not consistent, he was manipulated, gave

certain statements and answers, refuted by his mother, in her presence.

In this context, he referred to paragraph No.5 of the report of the

psychiatrist. It is also his contention that whenever the child had given

some answer, the same was stated to have been refuted by his mother.

Thus, according to the learned counsel for the respondent, it could be

seen that the mother had constantly checked his answers. He therefore

contended that the child had gone to shell and his answers did not

reflect, his intelligible preference, to the natural father or to the

stepfather. Hence, he contended that this document need not be given

weightage, while considering the paramount interest and welfare of the

child.

38. According to the learned counsel for the respondent/father,

the dominant influence on the child is clearly reflected in the document,

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and thus the child, had gone to shell, when questions relating to natural

father were posed. Reiterating that diary entries made by the appellant,

as to how she had intended to bring the child, as a single parent, learned

counsel for the respondent/father submitted that in the above

background, court has to consider, paramount welfare of the child.

39. According to the learned counsel for the respondent/father,

if the natural rights of the child are restricted by brain washing,

visitation rights restricted or prevented, then the same is not in the

paramount welfare of the child. Appellant has denied not only the right

of the child and natural father. She has virtually divorced the child from

his father. He further submitted that detailed objections were made to

the Psychiatrist’s report.

40. Referring to the judgment of the Hon’ble Supreme Court in

SectionGaurav Nagpal vs. Sumedha Nagpal, reported in 2009 (1) SCC 425,

learned counsel for the respondent/father submitted that in the said

case, the Hon’ble Supreme Court has observed that continued custody

would prejudice the mind of the child. According to him, the appellant

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has not shown, as to how the change in custody is not in the best interest

of the child. According to him, the order impugned has reinforced the

respondent’s right to custody.

41. Placing reliance on the decision in SectionGaurav Nagpal vs.

Sumedha Nagpal, reported in 2009 (1) SCC 425, learned counsel for the

respondent/father contended that if there is hostile attitude throughout,

court has to consider the said fact, in the paramount welfare of the

child.

42. Referring to Section 6 and Section13 of the Hindu Minority and

SectionGuardianship Act, 1956, learned counsel for the respondent/father

submitted that father is the natural guardian of the son. He further

submitted that is the appellant is under treatment, for stress, and

hypertension.

43. Inviting the attention of this court to the averments made in

I.A. No.2779/2010 in F.C.O.P. No.3499/2009, Mr.N.G.R. Prasad, learned

counsel for the respondent submitted that mother has been procrasting

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the proceedings, took unnecessary adjournments, did not produce the

child, on the pretext of going abroad and did not inform the

father/respondent. Her greater influence and dislocation of the child,

added pressure on the child to the bonding, towards the natural father.

Referring to the intelligent quotient of the child, his answers to the

questions posed by the psychiatrist, learned counsel subitted that the

child, when posed with questions, relating to natural father, child could

not even look at the father, to give reply.

44. Learned counsel for the respondent submitted that the

judgments relied on the appellant have to be considered on the facts of

each case. According to him, Family Court has taken note of the fact that

the mother has forsaken the visitation rights. When emotional bonding

was snapped by the appellant, the court has to consider all the facts in

toto, in the paramount welfare of the child. For the abovesaid reasons,

he prayed to sustain the order impugned.

45. By way of reply, Mr.A.Thiyagarajan, learned senior counsel

for the appellant submitted that whatever the respondent has relied on

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from the diary, had happened before the date of divorce. That was due

to tremendous pressure. The photographs were taken in 2005. According

to him, the above have no relevance at all. The respondent was

permitted to have visitation rights, which he has flouted. He denied the

allegation of poisoning/brain washing the child. Referring to Ex.C1 –

Psychological report, learned senior counsel submitted that the child is

an intelligent boy, and that there was no need to tutor him. According to

him, the child is happy with the appellant and family, and in the best

interest of the child, the order impugned has to be reversed.

46. Heard the learned counsel for the parties and perused the

materials available on record.

47. When granting divorce by mutual consent on 10.11.2009, the

Family Court has ordered permanent custody of the child to the mother

and visitation rights to the father. After three years, I.A.No.3648 of 2011

has been filed for modification, which has been ordered on 20.07.2015.

Reasons assigned for conclusion of the Family Court is that usually boys,

when they reach their adolescent age, father would treat the child as his

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friend. Though a contention has been made by the appellant-mother that

she, the child’s step-father and the entire family members, are taking

care of the child, considering the status and welfare of the child, Family

Court has held the the father can also give food, education and affection

to the child. Biological father can give more comforts to the child.

Family Court has further observed that respondent is still unmarried.

Family Court seemed to have addressed the above issues.

48. Before adverting into the factual aspects and rival

contentions, we deem it fit to consider, what the Courts have held in

matters relating to custody of a minor child, when there is dispute

between the spouses.

49. In Kumar v. Jahgirdar v. Chethana Ramatheertha reported

in 2004 (2) SCC 688, the Hon’ble Supreme Court, while considering the

interest of the minor child, vis-a-vis, the mother, who had re-married, on

the facts and circumstances of the case, given the custody of the female

child, on the advent of puberty, on the ground that, at such an age a

female child primarily requires a mother’s care and attention. The

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Hon’ble Supreme Court was of the view that 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. On the aspect of brainwashing the

child, the Hon’ble Supreme Court observed thus,

“12. From the arguments advanced on behalf of the
former husband, what we have been able to gather as more
important circumstances set up against allowing the wife to
retain the custody of the child inter alia are that the wife is
remarried to a cricket celebrity and has a style of life which
requires frequent foreign tours, exposure to public life and
media. There is also a possibility of the child being
brainwashed to keep distance from the natural father. On
the behaviour of the child during her interviews on two
occasions, as has been recorded by the High Court Judges,
submission made is that it might have been so due to
psychological counselling given to the child. It is stated that
during one of her interviews, a psychologist was found to be
accompanying her to the court before she, the child, entered
the chamber of the Judges for interview. On behalf of the
wife, the learned counsel stoutly denied any such happening
during hearing in court.

………..

15. After hearing the learned counsel appearing for the
parties at sufficient length and having bestowed our careful

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consideration to the observations and conclusions reached by
the Family Court and the High Court in their respective
judgments, we do not find any ground to substantially upset
the judgment of the High Court containing the arrangements
made therein for the custody of the child and the rights of
visitation granted to the natural father.

16. We make it clear that we do not subscribe to the
general observations and comments made by the High Court
in favour of the mother as parent to be always preferable to
the father to retain custody of the child. In our considered
opinion, such generalisation in favour of the mother should
not have been made. We, however, do not find that the
judgment of the High Court is based solely on one
consideration that between the two parents, the mother
always can claim superior right to retain the custody of the
child. The High Court has taken into consideration all other
relevant facts and circumstances to come to the conclusion
that a female child of growing age needs company more of
her mother compared to the father and remarriage of the
mother is not a disqualification for it. The conclusion of the
High Court seems to be just and proper in safeguarding the
interest of the child.”

Hon’ble Apex Court considered the case of a female child and at

Paragraphs 17 and 18, held as follows:

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“17. Without going into the allegations, counter-
allegations and misapprehensions expressed against each
other, on the paramount consideration of best safeguarding
the interest of the child, in our opinion, the judgment of the
High Court giving exclusive custody of the child to the mother
and visitation rights to the natural father deserves to be
maintained with little modification for the following reasons:

1. The child is, at present, 9 years of age and on
advent of puberty. This is the age in which she requires more
care and attention of the mother. Mother, at this age of the
child, deserves to continue to keep the custody of the female
child. She is reported to have given up her service and is now
leading life of a housewife. The progress report of Aaruni
from Sophia High School, Bangalore, indicates that she is very
good at studies and has a bright educational career.

2. It is reported that the wife is presently in the family
way. The prospect of arrival of the second child in the family
of the wife is another circumstance which would be in favour
of the present child.

3. The petitioner lives alone with his father. There are
no female members living jointly with him although he may
have female relations in the city but that would not ensure
constant company, care and attention to the female child.

4. The petitioner natural father is a busy stockbroker
allegedly carrying on his business with the aid of online

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computer but it cannot be said that in the course of his
business, he has not to remain out of residence for attending
his office and other business engagements.

5. The apprehension expressed against the second
husband that he might poison the mind of the child and
create ill will towards the natural father is not borne out
from the evidence on record. On the contrary, the second
husband in his deposition has made statements evincing a
very cooperative and humane attitude on his part towards
the problem of the estranged couple and the child. We find
that apprehension expressed against the second husband is
without foundation. The parents of the child have separated
by mutual consent without making any vicious allegation
against each other. They also agreed under the express terms
of the consent decree of divorce to take responsibility of
bringing up their child as her joint guardians. This gesture of
decency and cooperation in jointly looking after the child has
to continue. In this mutual agreement of separated couple,
on behalf of the second husband, it is assured to us that he
would continue to give his unreserved cooperation and help
and would do nothing as to spoil the relationship or intimacy
of the child with the natural father.

6. The visitation rights given to the natural father, in
the present circumstances, also do not require any
modification because with the passage of time, the growing

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child should eagerly wait for the company of her father as a
happy and enjoyable moment rather than treat it as a part of
empty ritual or duty. To make visitation rights of natural
father effective and meaningful for proper growth of the
child, active cooperation of both the parents and her
stepfather is expected and we hope it would not be found
wanting from any one of them.

7. Since the mother of the child is now married to a
famous cricketer, as and when she leaves the country on tour
with her husband during school days or vacation period of the
child without taking the child with her, instead of leaving the
child to the care and custody of some other member of the
family, the custody of the child during her absence from her
home shall be given to the natural father.”

18. With the above observations and modification, we
maintain the judgment of the High Court. The two appeals
are, thus, disposed of. As all the parties, before us, are
highly educated, cultured, of modern outlook, well-off and
having so far conducted themselves decently and courteously
towards each other, we hope, in future as well, they will
continue the same attitude and conduct for maintaining their
cordial relationships and extend full cooperation in
safeguarding the interest of the child in the best-possible
manner.”

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50. SectionIn Sheila B. Das v. PR.Sugasree reported in 2006 (3) SCC 62,

in respect of custody of minor girl, after having obtained the custody of a

minor girl child, father did not appear to have neglected the minor or to

look after all her needs. The child was happy in his company and was

doing consistently well in school. Father was financially stable, and also

not disqualified, in any way from being the guardian of the minor child.

The child also expressed her preference to be with the father, with

whom, she felt more comfortable. Court observed that the interest of

the minor child, will be best served, if she remained with the father.

Therefore, custody of minor female child was given to the father, as per

choice of the child, with the observation that child was highly

intelligent, and was in a position to make an intelligent choice.

Paragraphs 29 to 31 are extracted hereunder:

“29. 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

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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 father’s house and
she was able to relate to her aunt in matters which would
concern a growing girl during her period of adolescence.

30. 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 respondent’s company and has also been doing

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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.

31. 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.”

51. In Sheila B. Das’s case (cited supra), the child, a little more

than 12 years of age, was examined. After interacting with the child, the

Hon’ble Apex Court came to the conclusion that the child felt more

comfortable with the father. In the said case, custody was given to the

father, as per the choice of the minor girl. Child was provided good

education and taken care of, by the father.

52. SectionIn Lekha v. P.Anil Kumar reported in 2006 (13) SCC 555,

after considering the evidence on record and interviewing the child, the

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Hon’ble Supreme Court came to the conclusion that for the welfare of

the child, custody should be given to the mother and dismissed the

original petition of the respondent/father, filed under the Guardians and

SectionWards Act, holding that he is not entitled for the custody of the child.

Going through the judgment, we find that the High Court reversed the

finding of the trial court and directed to give the custody of the child to

the father, without interviewing the child. The High Court also permitted

the respondent to take the child to Gulf. After considering the facts and

circumstances of the case, the Hon’ble Supreme Court, at Paragraphs 12

to 23, held as follows:

“12. We have carefully perused the orders passed by
both the lower courts and of the High Court. The High Court,
before setting aside the concurrent finding passed by the
courts below, ought to have interviewed the child before
coming to a conclusion that for the welfare of the child the
custody should be given to the father. Mr Rajan submitted
that since the mother has remarried, she would not
devote her time for the welfare of the boy and that in the
interest of the child, the child should be given in custody
only to the father who is not only healthy but also have
other facilities to look after the child, his education and
welfare.

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13. We are of the opinion that the remarriage of the
mother cannot be taken as a ground for not granting the
custody of the child to the mother. The paramount
consideration should be given to the welfare of the child. As
already noticed, at the interview, the boy has expressed
his willingness and desire to live only with his mother and
was admitted by him that the mother will provide him
good education. The mother is also drawing pension of Rs
6000 p.m. and also having land and properties in her name.
When the boy says he prefers to live with his mother, we
are of the view that it will be beneficial for the boy and
his education for a better future. The High Court, in our
opinion, erred in allowing the appeal on the ground of
remarriage of the appellant without considering the other
aspects of the matter. It is a matter of custody of the child
and the paramount consideration should be the welfare of
the child. It is not in dispute that the boy is living with his
mother for the last several years and the separation at
this stage will affect the mental condition and the
education of the child and considering that the child
himself attaches importance to his education if the
custody is to be given to the father will now affect his
academic brilliance and future.

14. The High Court, in our opinion, ought to have seen
that the remarriage cannot be taken as a ground for (sic not)

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giving custody of the child. There is also no finding by the
High Court that the remarriage has adversely affected the
mental condition of the minor child.

15.SectionSk. Moidin v. Kunhadevi [AIR 1929 Mad 33 (FB)] was
a case of a father, a motor driver, applying for writ of habeas
corpus to get custody of his 7-year-aged child. Nobody was
available in his house to look after such child. The Full Bench
held that the Court has to look to an application under
habeas corpus in the interest of the child as being
paramount. The Court held that prima facie in the eye of the
law, the father is the natural guardian and custodian of the
person of his child. But it has been the law for a very long
time both in England and in this country that what a court
has to look to on applications under habeas corpus is the
interest of the child as being paramount.

16. SectionIn Samuel Stephen Richard v. Stella Richard [AIR
1955 Mad 451 : 56 Cri LJ 1192] the High Court in deciding the
question of custody held as follows: (AIR p. 452)

“In deciding the question of custody, the welfare of the
minor is the paramount consideration and the fact that the
father is the natural guardian would not ‘ipso facto’ entitle
him to custody. The principal considerations or tests which
have been laid down under Section 17, in order to secure
this welfare, are equally applicable in considering the
welfare of the minor under Section 25.

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The application of these tests casts an ‘arduous’ duty on the
court. Amongst the many and multifarious duties that a
Judge in Chambers performs by far the most onerous duties
are those cast upon him by the Guardians and SectionWards Act. He
should place himself in the position of a wise father and be
not tired of the worries which may be occasioned to him in
selecting a guardian best fitted to assure the welfare of a
minor and thereafter guide and control the guardian to
ensure the welfare of the ward—a no mean task but the
highest fulfilment of the dharmasastra of his own country.

It is only an extreme case where a mother may not have the
interest of her child most dear to her. Since it is the mother
who would have the interest of the minor most at heart, the
tender years of a child needing the care, protection and
guidance of the most interested person, the mother has
come to be preferred to others.”

17. SectionIn Thrity Hoshie Dolikuka v. Hoshiam Shavaksha
Dolikuka [(1982) 2 SCC 544 : AIR 1982 SC 1276] this Court
held as under: (SCC p. 565, para 17)

“17. The principles of law in relation to the custody of
a minor appear to be well established. It is well settled that
any matter concerning a minor, has to be considered and
decided only from the point of view of the welfare and
interest of the minor. In dealing with a matter concerning a
minor, the Court has a special responsibility and it is the

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duty of the Court to consider the welfare of the minor and to
protect the minor’s interest. In considering the question of
custody of a minor, the Court has to be guided by the only
consideration of the welfare of the minor.”

18. According to the Hindu law, the natural guardian of
a minor child is the father. In the next place, the guardian of
a child is the mother. The very principle of guardianship is
that there is a presumption that parents will be able to
exercise good care in the welfare of their children if they do
not happen to be unsuitable as guardians.

19. The law permits a person to have the custody of
his minor child. The father ought to be the guardian of the
person and property of the minor under ordinary
circumstances. The fact that the mother has married again
after the divorce of her first husband is no ground for
depriving the mother of her parental right of custody. In
cases like the present one, the mother may have
shortcomings but that does not imply that she is not
deserving of the solace and custody of her child. If the court
forms the impression that the mother is a normal and
independent young woman and shows no indication of
imbalance of mind in her, then in the end the custody of the
minor child should not be refused to her or else we would be
really assenting to the proposition that a second marriage
involving a mother per se will operate adversely to a claim

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of a mother for the custody of her minor child. We are
fortified in this view by the authority of the Madras High
Court in SectionS. Soora Reddi v. S. Chenna Reddi [AIR 1950 Mad 306
: (1950) 1 MLJ 33] where Govinda Menon and Basheer Ahmed
Syed, JJ. have clearly laid down that the father ought to be
a guardian of the person and property of the minor under
ordinary circumstances and the fact that a Hindu father has
married a second wife is no ground whatever for depriving
him of his parental right of custody.

20. A man in his social capacity may be reckless or
eccentric in certain respects and others may even develop a
considerable distaste for his company with some justification
but all that is a far cry from unfitness to have the natural
solace of the company of one’s own children or for the duty
of bringing them up in proper manner. Needless to say the
respondent husband, in this case, seems to be anxious to
have the minor child with him as early as possible in order to
look after him properly and to provide for his future
education. The feelings being what they are between the
respondent and the appellant we think it is also natural on
the part of the husband to feel that if the minor child
continues to live with his former wife, it may be brought up
to hate the father or to have a very adverse impression
about him. This certainly is not desirable. Needless to say,
this Court is not called upon to find that the respondent

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husband has been entirely blameless in his conduct and few
occasions referred to in this case and by the boy at the time
of interview, it is not the duty of this Court even to ascertain
whether the respondent is a responsible and good citizen and
a preferred individual. Many people have shortcomings but
that does not imply that they are not deserving of the solace
and custody of their children.

21. However, in the present case, we have to decide in
the interest of the child as to who would be in a better
position to look after the child’s welfare and interest. The
general view that the courts have taken is that the interest
and welfare of the child is paramount. While it is no doubt
true that under the Hindu law, the father is the natural
guardian of a minor after the age of six years, the court
while considering the grant of custody of the minor to him
has to take into account other factors as well, such as the
capacity of the father to look after the child’s needs and to
arrange for his upbringing. It also has to be seen whether in
view of his other commitments, the father is in any position
to give personal attention to the child’s overall development.

22. As indicated hereinbefore, we have spoken to the
child who, in our view, is intelligent and appears to be
capable of expressing his preference. In fact, he has in no
uncertain terms indicated his desire to stay with his mother.
His mother’s second marriage, instead of proving to be a

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disadvantage, has proved to be beneficial for the child who
seems to be happy and contented in his present situation and
we do not think it would be right to unsettle the same.

23. The High Court committed a grave error in not
ascertaining the wishes of the minor, which has consistently
been held by the courts to be of relevance in deciding grant
of custody of minor children. We are, therefore, inclined to
restore the order passed by the Family Court and to give
custody of the minor boy to his mother, but as indicated
hereinbefore, we do not want the child to grow up without
knowing the love and affection of his natural father who too
has a right to help in the child’s upbringing. We are of the
view that although the custody of the minor child is being
given to the mother, the child should also get sufficient
exposure to his natural father and accordingly, we permit
the respondent to have custody of the child from the
appellant during Onam and other important festivals and
during the school vacation. We make it clear that the
appellant mother shall hand over the child to the respondent
father during every mid-summer vacation for about a month
without adversely affecting the child’s education. The
appellant should not also prevent the respondent father from
coming to see the child during weekends and the appellant
should make necessary arrangements for the respondent to
meet his child on such occasions. The appellant should not

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also prevent the child from receiving any gift that may be
given by the respondent father to the child.”

53. SectionIn Mausami Moitra Ganguli v. Jayant Ganguli reported in

2008 (7) SCC 673, the Hon’ble Supreme Court held that the child’s

welfare is the primary factor in deciding in whose custody the child

should be placed. The question in the reported case was, whether the

father or the mother, should have the custody of an almost ten year old

male child. Child’s parents got married on April 18, 1996. On May 28,

1998, a boy, named Satyajeet was born from the wedlock. However,

within a short time, relationship between the spouses came under strain.

Wife, who was employed as a teacher, felt that her husband had

misrepresented his occupational status to her, was addicted to alcohol

and smoking, had contacts with anti-social elements and had physically

abused her. After moving out of her marital home leaving her son behind,

she filed a suit for divorce against respondent, which was decreed

ex-parte on September 12, 2002. Since no appeal was preferred by the

respondent therein against the said decree, which attained finality, she

then moved a petition on April 5, 2003 under Sections 10 and Section25 of the

Guardians and SectionWards Act, 1890 read with the provisions of the Hindu

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Minority and SectionGuardianship Act, 1956 before the Family Court, Allahabad

sought for a declaration in her favour to be the lawful guardian of her

minor son and for a direction to the respondent therein to hand over the

custody of the child to her. In the said judgment, the Hon’ble Supreme

Court discussed the principles, as to which, parent, father/mother, as

the case may be, should be granted custody of a child and held thus,

“19. 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 SectionWards Act,
1890 (Section 17) or the Hindu Minority and SectionGuardianship
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.

20. 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

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binding precedents insofar as the factual aspects of the case
are concerned. It is, no doubt, true that father is presumed
by the statutes to be better suited to look after the welfare
of the child, being normally the working member and head of
the family, yet in each case the Court has to see primarily to
the welfare of the child in determining the question of his or
her custody. Better financial resources of either of the
parents or their love for the child may be one of the relevant
considerations but cannot be the sole determining factor for
the custody of the child. It is here that a heavy duty is cast
on the Court to exercise its judicial discretion judiciously in
the background of all the relevant facts and circumstances,
bearing in mind the welfare of the child as the paramount
consideration.

21. In Rosy Jacob Vs. Jacob A. Chakramakkal, (1973) 1
SCC 840, a three-Judge Bench of the Supreme Court in a
rather curt language had observed that,
“15. …….The children are not mere chattels; nor are
they mere play-things for their parents. Absolute right of
parents over the destinies and the lives of their children has,
in the modern changed social conditions, yielded to the
considerations of their welfare as human beings so that they
may grow up in a normal balanced manner to be useful
members of the society and the guardian court in case of a
dispute between the mother and the father, is expected to

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strike a just and proper balance between the requirements
of welfare of the minor children and the rights of their
respective parents over them.”

22. 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.

23. 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.

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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 is stated to have his small
group of friends there. At Panipat, it would be an entirely
new environment for him as compared to Allahabad.

24. 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 to him.

25. 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.

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Watching his reaction, we dropped the proposal.

26. Under these circumstances and bearing in mind the
paramount consideration of the welfare of the child, we are
convinced that the 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
aforeextracted 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.”

54. In Mausami Moitra Ganguli’s case, the Hon’ble Apex Court

considered that the child was studying in a reputed school. Appellant-

mother had taken proper care and attention in up bringing of the child,

which is one of the important factors to be considered, for the welfare of

the child. Child was with the mother right from her childhood, which has

resulted into a strong emotional bondage.

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55. SectionIn Anjali Kapoor v. Rajiv Baijal reported in 2009 (7) SCC

322, wife of the respondent, went for delivery, died after giving birth to

a newborn baby, which was premature, and the child was kept in an

incubator in the hospital for nearly 45 days. After discharge from the

hospital, infant was brought to the residence of the appellant therein,

mother-in-law and though respondent-husband was repeatedly requesting

the appellant and her family members, to hand over the custody of the

child to him, since the appellant was unable to take care of the welfare

of the minor child. Since the respondent/father has not taken care of his

wife, appellant, mother-in-law has refused to give the child to him. Both

the Family Court and High Court gave the custody of the child to the

respondent-father. The appellant, mother-in-law has filed the appeal.

The Hon’ble Supreme Court considered the vital questions, as to whether

the Court has to consider the rights of the parties or the paramount

welfare of the child or what should be the tests, consideration thereof.

At Paragraphs 15 to 26, the Hon’ble Supreme Court held as follows:

“15. Under the Guardians and SectionWards Act, 1890, the
father is the guardian of the minor child until he is found
unfit to be the guardian of the minor female child. In
deciding such questions, the welfare of the minor child is the

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paramount consideration and such a question cannot be
decided merely based upon the rights of the parties under
the law. [SectionSee Sumedha Nagpal v. State of Delhi [(2000) 9 SCC
745 : 2001 SCC (Cri) 698] (SCC p. 747, paras 2 5).]

16. SectionIn Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1
SCC 840] this Court has observed that: (SCC p. 847, para 7)
“7. … the principle on which the court should decide the
fitness of the guardian mainly depends on two factors: (i) the
father’s fitness or otherwise to be the guardian, and (ii) the
interests of the minors.”
This Court considering the welfare of the child also stated
that: (SCC p. 855, para 15)
“15. … The children are not mere chattels: nor are
they mere playthings for their parents. Absolute right of
parents over the destinies and the lives of their children has,
in the modern changed social conditions, yielded to the
considerations of their welfare as human beings so that they
may grow up in a normal balanced manner to be useful
members of the society….”

17. SectionIn Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987)
1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 3] this Court has
observed that whenever a question arises before court
pertaining to the custody of the minor child, the matter is to
be decided not on consideration of the legal rights of the
parties but on the sole and predominant criterion of what

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would best serve the interest and welfare of the child.

18. At this stage, it may be useful to refer to the
decision of the Madras High Court, to which reference is
made by the High Court in the case of SectionMuthuswami Moopanar
[Muthuswami Chettiar v. K.M. Chinna Muthuswami Moopanar,
AIR 1935 Mad 195] wherein the Court has observed, that, if a
minor has for many years from a tender age lived with
grandparents or near relatives and has been well cared for
and during that time the minor’s father has shown a lack of
interest in the minor, these are circumstances of very great
importance, having bearing upon the question of the interest
and welfare of the minor and on the bona fides of the
petition by the father for their custody. In our view, the
observations made by the Madras High Court cannot be taken
exception to by us. In fact those observations are tailor-
made to the facts pleaded by the appellant in this case. We
respectfully agree with the view expressed by the learned
Judges in the aforesaid decision.

19. In McGrath (infants), Re [(1893) 1 Ch 143 : 62 LJ Ch
208 (CA)] it was observed that: (Ch p. 148)
“… The dominant matter for the consideration of the
court is the welfare of the child. But the welfare of a child is
not to be measured by money only, nor by physical comfort
only. The word welfare must be taken in its widest sense.

The moral and religious welfare of the child must be

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considered as well as its physical well-being. Nor can the ties
of affection be disregarded.”

20. In American Jurisprudence, 2nd Edn., Vol. 39, it is
stated that:

“… 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.”

21. SectionIn Walker v. Walker Harrison [1981 New Ze
Recent Law 257] the New Zealand Court (cited by British Law
Commission, Working Paper No. 96) stated that:

“Welfare is an all-encompassing word. It includes
material welfare; both in the sense of adequacy of resources
to provide a pleasant home and a comfortable standard of
living and in the sense of an adequacy of care to ensure that
good health and due personal pride are maintained.
However, while material considerations have their place they
are secondary matters. More important are the stability and
the security, the loving and understanding care and

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guidance, the warm and compassionate relationships that
are essential for the full development of the child’s own
character, personality and talents.” (emphasis supplied)

22. Bearing these factors in mind, we proceed to
consider as to who is fit and proper to be the guardian of the
minor child Anagh in the facts and circumstances of the
present case. In this case, the appellant is taking care of
Anagh, since her birth when she had to go through intensive
care in the hospital till today. The photographs produced by
her along with the petition, which is not disputed by the
other side would clearly demonstrate the amount of care,
affection and the love that the grandmother has for the child
having lost her only daughter in tragic circumstances. She
wants to see her daughter’s image in her grandchild. She has
bestowed her attention throughout for the welfare of
reminiscent of her only daughter, that is the minor child
which is being dragged from one end to another on the so-
called perception of judicial precedents and the language
employed by the legislatures on the right of natural guardian
for the custody of minor child.

23. Anagh is staying with the appellant’s family and
is also studying in one of the reputed schools in Indore. It
must be stated that the appellant has taken proper care
and attention in upbringing of the child, which is one of
the important factors to be considered for the welfare of

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the child. Anagh is with the appellant right from her
childhood which has resulted into a strong emotional
bonding between the two and the appellant being a
woman herself can very well understand the needs of the
child. It also appears that the appellant, even after her
husband’s demise, is financially sound as she runs her own
independent business.

24. On the other hand, considering the evidence of the
respondent, it seems to us that since he has borrowed money
from several persons and since he has a meagre income he
may not be in a position to give comfortable living for the
child. In spite of notices issued to him, he has not appeared
before the Court personally or through his counsel which
shows his lack of concern in the matter.

25. It is also brought to our notice that the respondent
has got married for the second time and has a child too, and
the minor child might have to be in the care of stepmother,
specially the father being a businessman, he has to be out of
the house frequently on account of his business.

26. Ordinarily, under the Guardian and SectionWards Act, the
natural guardians of the child have the right to the custody
of the child, but that right is not absolute and the courts are
expected to give paramount consideration to the welfare of
the minor child. The child has remained with the appellant
grandmother for a long time and is growing up well in an

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atmosphere which is conducive to its growth. It may not
be proper at this stage for diverting the environment to
which the child is used to. Therefore, it is desirable to
allow the appellant to retain the custody of the child.

27. In view of the above discussion, we allow this
appeal and set aside the impugned order. We permit the
appellant to have the custody of the child till she attains the
age of majority.”

56. SectionIn Gaurav Nagpal v. Sumedha Nagpal reported in 2009 (1)

SCC 42, appellant-father and respondent-mother married on 14.10.1996

and a child was born to them on 15.11.1997. Initially, in exercise of its

power of revision, the High Court by order, dated 30.09.2002, allowed

the custody of a child to the appellant-father with visitation rights to the

respondent-mother. But as the visitation rights granted to the mother

were not complied with, District Court allowed a contempt petition of

the respondent-mother and also allowed her application under Section 6

of the Hindu Minority and SectionGuardianship Act, 1956 and transferred the

custody of the child to her. Even though the appellant filed his reply to

the maintenance petition, opposing the application, on the ground that

the respondent had deserted the child. High Court dismissed the appeal

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of the appellant-father. The Hon’ble Supreme Court has rejected the

arguments of the father that as the minor child was living with him since

long, the arrangement should not be disturbed. Relevant portion of the

said judgment is reproduced hereinbelow:-

“52. The trump card in the appellant’s argument is
that the child is living since long with the father. The
argument is attractive. But the same overlooks a very
significant factor. By flouting various orders, leading even to
initiation of contempt proceedings, the appellant has
managed to keep custody of the child. He cannot be a
beneficiary of his own wrongs…………”

57. SectionIn Dr.Nithya Vidyaprakash v. B.Suresh Babu reported in

2010 (5) MLJ 805, inspite of exhaustive terms of a compromise decree,

the parties in the said case sought for varying the terms of compromise.

In the said case, the appellant-mother who was having the custody of the

child, sought for deletion of visitation rights of father. The

respondent/father who had only visitation rights, sought for custody of

minor child and sought to set aside the Clause, giving custody to the

minor to the mother. Question which came for consideration, was

whether the welfare of the minor child, when the parties seek for

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variation of the terms of compromise, will have to be determined only in

the light of the changed circumstances, and the evidence to be adduced

by the parties. At paragraphs 27 to 41, a Hon’ble Division Bench of this

Court discussed and held as follows:

“27.We have carefully considered the contentions of
both Appellant mother and Respondent father. In 2005, at
the time when parties have entered into compromise, both
Appellant and Respondent were single and their only focus
was their relationship towards minor Rahul born out of the
lawful wedlock. Now the circumstances have changed. Either
the parties are pursuing their career or that some other
relationship have set in deviating focus of their love and
affection.

28. Before we elaborate upon the changed
circumstances, we may also note the conduct of the parties.
As pointed out earlier, the Respondent-father was given
visitation rights for two consecutive weeks. The visitation
rights of the father as per the memo of compromise read as
under:

“3) (a) The father shall have access to the child for two
consecutive week ends viz., first week end commencing on
Friday evening 6 P.M. till Sunday Evening 6 P.M.

(b) and the second week end will commence on
Saturday morning at 8.45 A.M. till Sunday Evening 6 P.M.

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(c) During the third week end, the child will be
retained by the mother

(d) During the gap between the end of second week
and the commencement of the first week and, the father
shall have the right to take the child on a Wednesday
directly from the School and retain the child till 7 P.M.

4) During vacation i.e., quarterly, half yearly and
summer vacations, the father shall have the custody of the
child for the first half of the holiday and the mother will
have custody for the second half of the holidays.

5) The father undertakes to pickup the child and also
drop him back at the agreed timings.”

29. As per the above terms of compromise, the
Respondent – father shall have the child for two consecutive
week ends. It is also clear from the terms of compromise
that between the end of second week and the
commencement of first week, the father shall have the right
to take the child on Wednesday directly from the School and
retain the child till 7.00 P.M. As per the terms of
compromise, the Respondent was exercising his visitation
rights without much difficulty till the Appellant moved to
Secunderabad. After securing job in Secunderabad, the
Appellant had taken the child also along with her to
Secunderabad, of course, after intimation to the
Respondent. When parties have arrived at the compromise

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and a decree was passed by the Court, when the child was
moved out of jurisdiction of the Court, the Appellant ought
to have informed the Family Court about moving the child
out of jurisdiction of the Court. But that was not resorted to.
The conduct of the Appellant in moving the child out of the
jurisdiction of the Court without informing the Family Court,
Coimbatore is not appreciable.

30. Respondent father has gone a step further in
flouting the terms of compromise by his conduct of acting in
clear violation of terms of compromise. As per terms of
compromise, during vacation, in quarterly, half yearly and
summer vacation, the father shall have the custody of the
child for the first half of the holidays and mother will have
custody for the second half of the holidays from Hyderabad.
As per the terms of compromise, the Respondent has taken
the minor child Rahul on 25.4.2009 for the first half of the
holidays. As per the terms of compromise decree, the
Respondent should have handed over the minor to the
Appellant on or before 17.5.2009, but the Respondent failed
to do so, and thereby violated the terms and conditions of
compromise decree. Not stopping with that, in the year
2009, the Respondent has also admitted the minor child
Rahul in a School in Coimbatore and retained the child with
himself, which is in clear violation of terms of the
compromise decree. Retaining the custody of child is clear

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violation of the terms of compromise. Efforts of the
appellant to take back the child by sending telegram and
lodging police complaint ended in vain.

31. In the above circumstances, the Appellant had filed
I.A.No.636 of 2009 to initiate contempt proceedings against
the Respondent for violating the orders of the Court. She has
also filed I.A.Nos.637 of 2009 and 638 of 2009 seeking for
cancellation of the visitation rights of the Respondent and
also for appointment of Advocate Commissioner to take the
custody and hand over the child. Even when the matter was
pending in the Family Court, the Respondent filed
C.R.P.NPD.Nos.1598 and 1599 of 2009 seeking for custody of
minor child and obtained an order of interim stay of
operation of I.A.No.700 of 2007. In our considered view, the
interim order cannot justify the unlawful retention of the
minor child. The conduct of the Respondent in retaining the
custody of the child is in violation of terms of compromise
and is despicable. The Court has to take serious note of the
high handed act of the Respondent in retaining the minor
child in clear violation of the terms of compromise.

32. We are of the view that both parties seem to be
acting contrary to the terms of compromise. Both of them do
not seem to be inclined to honour their commitment as per
the terms of compromise. After recording of compromise,
situation and circumstances have changed. As pointed out

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earlier, the Respondent has re-married one Nikethana on
20.1.2006 and girl child was born to Respondent out of
second marriage on 18.10.2006. With a view to expand his
business, now admittedly the Respondent is widely travelling
and he has also admittedly put up office in Chennai. In fact,
according to the Appellant, the Respondent has shifted his
residence to Chennai.

33. After hearing the matter on 4.3.2010, we have
posted the matter to 15.3.2010 for orders and directed the
parties to be present in the Court along with minor Rahul.
Immediately, thereafter on 8.3.2010, the learned counsel for
Appellant made a mention before us stating that the
Appellant has certain marriage proposal and that the
Appellant wants to file an affidavit in this regard and
requested the matter to be listed on 9.3.2010. On such
request, the matter was again listed on 9.3.2010 under the
caption “for being mentioned”. The learned counsel for
Appellant took an adjournment and on 10.3.2010 he filed the
affidavit of the Appellant. In the affidavit, the Appellant has
stated that she has received a marriage proposal from a
Doctor settled in United Kingdom and the said Doctor has
also agreed to support her endeavour to have her minor son
Rahul to grow up with the Appellant. According to the
Appellant, the prospective groom is also from the same
profession and that he is a permanent resident of United

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Kingdom and considering the well being of Rahul as well as
her own future she has conveyed her consent to marry
Dr.Kishore Krishnamurthy shortly and in that event she has to
re-locate herself along with Rahul at United Kingdom. The
learned counsel for the appellant has submitted that the
Court may take into consideration the subsequent
developments and pass suitable orders having regard to the
subsequent developments.

34. On 11.3.2010, the Respondent filed response
stating that affidavit filed by Appellant relates to a future
event, which cannot be treated as part of enquiry and the
consent of the person, who had proposed to marry the
Appellant “to support her endeavour to have her son grow up
with her” relates to a future event, which is not yet
materialised and merits of such future event, which is not
yet materialised, cannot be examined by the Court. The
learned counsel for the Respondent also submitted that the
proposal of the Appellant to marry a resident of United
Kingdom and consequent relocation of Appellant along with
minor Rahul to the United Kingdom is outside the scope of
clauses incorporated in joint memo of compromise originally
recorded by the Family Court. Learned counsel for the
Respondent also submitted that removal of minor child from
India to United Kingdom would amount to virtually depriving
the father from exercising his visitation rights.

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35. That respondent has remarried and his second wife
had given birth to a girl child is a changed circumstance. In
such changed circumstance, can the Respondent exercise the
visitation rights as per compromise decree is a question of
fact to be determined. Affidavit filed by the Appellant
regarding her proposal to re-marry and re-location to United
Kingdom is a development subsequent to the Family Court
passed the common order on 29.4.2009. The welfare of the
child has to be examined vis-a-vis the changed circumstances
and the subsequent developments.

36. In the light of the changed circumstances, we are
of considered view that parties are to be heard. Earlier,
while disposing I.A.Nos.700 of 2007 and 56 of 2009, the
Family Court has passed the order based on the affidavit
evidence rather than asking the parties to adduce oral
evidence. As pointed out earlier, at the time when the
compromise was recorded between the parties in 2005, both
of them were just separated and single and their only focus
was minor child. Now the Respondent has re-married and the
Appellant also has a proposal for re-marriage. The welfare of
the minor will have to be determined in the light of the
changed circumstances. In our considered view, the welfare
of child could be determined only if the parties adduce oral
and documentary evidence, which would enable the Court to

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assess the situation to determine the interest and welfare of
the minor child.

37. After passing of decree in terms of compromise,
the Family Court Court does not become functus officio, but
continues to exercise jurisdiction in monitoring the welfare
of the child. In the light of changed circumstances, both
parties now seek variation of the terms of compromise. In
such view of the matter, common order of the Family Court,
Coimbatore dated 29.4.2009 made in I.A.Nos.700 of 2007 and
56 of 2009 in G.W.O.P.No.1 of 2005 has to be set aside and
the matter has to be remitted back to the Family Court for
consideration of the matter afresh in the light of the
evidence to be adduced by the parties.

38. Insofar as the custody of the child, as we pointed
out earlier, in clear violation of terms of compromise, the
Respondent father had taken the child in 2009 for first half
of the holidays and retained the child thereafter. The
respondent father has gone to the extent of admitting the
child in the school in Coimbatore and retaining the child. The
conduct of the father is in clear violation of terms of
compromise and we express strong disapproval of the
conduct of Respondent-father. However, it was stated before
us that the child has annual examination scheduled from
25.3.2010 and the child was in Coimbatore for the past one
year. In such circumstances, even though we strongly

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disapprove the conduct of the Respondent-father, we are not
inclined to immediately disturb the status quo (custody) of
the child till the Family Court determines the matter afresh.

39. In the result, the common order of the Family
Court in Family Court, Coimbatore dated 29.4.2009 made in
I.A.Nos.700 of 2007 and 56 of 2009 in G.W.O.P.No.1 of 2005
is set aside and both the applications are remitted back to
the Family Court for consideration of the matter afresh to
determine the welfare of the minor child in the light of the
changed circumstances and in the light of the well settled
principles. The Family Court shall afford sufficient
opportunities to both parties to adduce oral and
documentary evidence and consider the matter afresh and
pass appropriate orders. Insofar as the custody of child, the
present status quo shall continue till the disposal of the
matter afresh by the Family Court. The Family Court shall
complete the above exercise within a period of two months
from the date of receipt of copy of this order. Both the
parties are directed to cooperate with the Family Court for
disposal of the matter within the said time frame. The
Appeal and revisions shall stand disposed of on the above
terms. However, there shall be no order as to costs.
Consequently, the connected miscellaneous petitions are
closed.”

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58. SectionIn Athar Hussain v. Syed Siraj Ahmed reported in 2010 (2)

SCC 654, the appellant therein married the daughter of 1st respondent

therein, as per the Islamic rites and customs. Two children were born out

of the wedlock. Wife of the appellant therein died after thirteen years of

marriage and within a year he married again. Maternal grandfather,

maternal aunt and uncles of the minor children, respondents therein, girl

aged 13 years and boy aged 5 years, initiated proceedings, under

Sections 7, 9 and 17 of the Guardian and SectionWards Act, 1890 for

appointment as guardians. They also filed application under Section 12 of

the Act r/ w Order 39 Rules 1 and 2 CPC, praying for interim protection

of the persons and properties of the minor children and also for an

injunction order restraining the appellant from interfering or disturbing

the custody of the minor children. Family Court passed an interim order

restraining the appellant from interfering with the custody of the

children with the respondent. Appellant challenged the order. Family

court vacated the interim order of injunction. High Court set aside the

said order and passed certain directions. In the reported case, the

Hon’ble Apex Court noticed that the child was reluctant to go with the

father. On that aspect, the Hon’ble Apex Court, at paragraph No.24,

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observed thus,

“24. Though when the children’s father is not unfit
otherwise he shall be the natural guardian, a child cannot be
forced to stay with his/her father. According to the High
Court, merely because the father has love and affection for
his children and is not otherwise shown unfit to take care of
the children, it cannot be necessarily concluded that the
welfare of the children will be taken care of once their
custody is given to him. The girl had expressed a marked
reluctance to stay with her father. The High Court was of the
opinion that the children had developed long-standing
affection towards their maternal grandfather, aunt and
uncles. It will take a while before they develop the same
towards their stepmother. The sex of the minor girl who
would soon face the difficulties of attaining adolescence is
an important consideration, though not a conclusive one. She
will benefit from the guidance of her maternal aunt, if
custody is given to the respondents, which the appellant will
be in no position to provide. Further, there is a special
bonding between the children and it is desirable that they
stay together with their maternal grandfather, uncles and
aunt.”

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59. On the aspect, as to whether there are compelling reasons to

change custody of the child, the Hon’ble Apex Court, at Paragraph Nos.36

and 37, observed thus:

“36. The appellant placed reliance on SectionR.V. Srinath
Prasad v. Nandamuri Jayakrishna [(2001) 4 SCC 71 : AIR 2001
SC 1056] . This Court had observed in this decision that
custody orders by their nature can never be final; however,
before a change is made it must be proved to be in the
paramount interest of the children. In that decision, while
granting interim custody to the father as against the
maternal grandparents, this Court held: (SCC pp. 76-77, para

10)
“10. … The Division Bench appears to have lost sight of
the factual position that at the time of death of their mother
the children were left in custody of their paternal
grandparents with whom their father is staying and the
attempt of Respondent 1 was to alter that position before
the application filed by them is considered by the Family
Court. For this purpose it was very relevant to consider
whether leaving the minor children in custody of their father
till the Family Court decides the matter would be so
detrimental to the interest of the minors that their custody
should be changed forthwith. The observations that the
father is facing a criminal case, that he mostly resides in USA

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and that it is alleged that he is having an affair with another
lady are, in our view, not sufficient to come to the
conclusion that custody of the minors should be changed
immediately.”
(emphasis supplied)
What is important for us to note from these
observations is that the court shall determine whether, in
proceedings relating to interim custody, there are sufficient
and compelling reasons to persuade the court to change the
custody of the minor children with immediate effect.

This extract is taken from SectionAthar Hussain v. Syed Siraj Ahmed,
(2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528 at page 665

37. Stability and consistency in the affairs and routines
of children is also an important consideration as was held by
this Court in another decision cited by the learned counsel
for the appellant in SectionMausami Moitra Ganguli v. Jayant Ganguli
[(2008) 7 SCC 673 : AIR 2008 SC 2262] . This Court held: (SCC
pp. 679-80, para 24)
“24. … 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 to him.”
After taking note of the marked reluctance on the part
of the boy to live with his mother, the Court further

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observed: (Mausami Moitra case [(2008) 7 SCC 673 : AIR 2008
SC 2262] , SCC p. 680, para 26)
“26. Under these circumstances and bearing in mind
the paramount consideration of the welfare of the child, we
are convinced that the 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.”
(emphasis supplied)

60. SectionIn Vikram Vir Vohra v. Shalini Bhalla, reported in (2010) 4

SCC 409, the Hon’ble Supreme Court held that welfare of child is the

paramount importance in matters relating to child custody and may have

primacy even over statutory provisions. Child custody being a very

sensitive issue, custody orders are always considered, as interlocutory

orders capable of being modified keeping in mind needs of the child.

Such orders even when based on consent can be varied if welfare of child

so demands. After personally interviewing the child aged about 7 years to

ascertain his wishes, the Hon’ble Supreme Court held as follows:

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“10. We have also talked with the child in our
chambers in the absence of his parents. We found him to be
quite intelligent and discerning. The child is in school and
from the behaviour of the child, we could make out that he
is well behaved and that he is receiving proper education.
The child categorically stated that he wants to stay with his
mother. It appears to us that the child is about 8-10 years of
age and is in a very formative and impressionable stage of
his life. The welfare of the child is of paramount importance
in matters relating to child custody and this Court has held
that welfare of the child may have a primacy even over
statutory provisions (see SectionMausami Moitra Ganguli v. Jayant
Ganguli [(2008) 7 SCC 673] , p. 678, para 19). We have
considered this matter in all its aspects.

11. The argument of the learned counsel for the
appellant, that in view of the provisions of Section 26 of the
Act, the order of custody of the child and the visitation
rights of the appellant cannot be changed as they are not
reflected in the decree of mutual divorce, is far too
hypertechnical an objection to be considered seriously in a
custody proceeding. A child is not a chattel nor is he/she an
article of personal property to be shared in equal halves.

12. In a matter relating to the custody of a child, this
Court must remember that it is dealing with a very sensitive
issue in considering the nature of care and affection that a
child requires in the growing stages of his or her life. That is

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why custody orders are always considered interlocutory
orders and by the nature of such proceedings custody orders
cannot be made rigid and final. They are capable of being
altered and moulded keeping in mind the needs of the child.

13. SectionIn Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1
SCC 840] a three-Judge Bench of this Court held that all
orders relating to the custody of minors were considered to
be temporary orders. The learned Judges made it clear that
with the passage of time, the Court is entitled to modify the
order in the interest of the minor child. The Court went to
the extent of saying that even if orders are based on
consent, those orders can also be varied if the welfare of the
child so demands.

14. The aforesaid principle has again been followed in
SectionDhanwanti Joshi v. Madhav Unde [(1998) 1 SCC 112] .

15. Even though the aforesaid principles have been
laid down in proceedings under the Guardians and SectionWards Act,
1890 these principles are equally applicable in dealing with
the custody of a child under Section 26 of the Act since in
both the situations two things are common; the first, being
orders relating to custody of a growing child and secondly,
the paramount consideration of the welfare of the child.
Such considerations are never static nor can they be
squeezed in a straitjacket. Therefore, each case has to be
dealt with on the basis of its peculiar facts.

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16. In this connection, the principles laid down by this
Court in SectionGaurav Nagpal v. Sumedha Nagpal [(2009) 1 SCC 42]
are very pertinent. Those principles in paras 42 and 43 are
set out below: (SCC p. 55)
“42. 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.

43. 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.”
That is why this Court has all along insisted on
focussing the welfare of the child and accepted it to be the
paramount consideration guiding the court’s discretion in
custody order. (SectionSee Thrity Hoshie Dolikuka v. Hoshiam
Shavaksha Dolikuka [(1982) 2 SCC 544 : AIR 1982 SC 1276] ,
AIR p. 1289, para 17.)

17. In the factual and legal background considered
above, the objections raised by the appellant do not hold
much water.

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18. Now coming to the question of the child being
taken to Australia and the consequent variations in the
visitation rights of the father, this Court finds that the
respondent mother is getting a better job opportunity in
Australia. Her autonomy on her personhood cannot be
curtailed by the Court on the ground of a prior order of
custody of the child. Every person has a right to develop his
or her potential. In fact a right to development is a basic
human right. The respondent mother cannot be asked to
choose between her child and her career. It is clear that the
child is very dear to her and she will spare no pains to ensure
that the child gets proper education and training in order to
develop his faculties and ultimately to become a good
citizen. If the custody of the child is denied to her, she may
not be able to pursue her career in Australia and that may
not be conducive either to the development of her career or
to the future prospects of the child. Separating the child
from his mother will be disastrous to both.

19. Insofar as the father is concerned, he is already
established in India and he is also financially solvent. His
visitation rights have been ensured in the impugned orders of
the High Court. His rights have been varied but have not
been totally ignored. The appellant father, for all these
years, lived without the child and got used to it.

20. In the application dated 9-5-2008 filed before the

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Additional District Judge, Delhi, the mother made it clear in
Para 12 that she is ready to furnish any undertaking or bond
in order to ensure her return to India and to make available
to the father, his visitation rights subject to the education of
the child.

21. This Court finds that so far as the order which had
been passed by the High Court, affirming the order of the
trial court, the visitation rights of the appellant father have
been so structured as to be compatible with the educational
career of the child. This Court finds that in this matter
judicial discretion has been properly balanced between the
rights of the appellant and those of the respondent. In that
view of the matter, this Court refuses to interfere with the
order passed by the High Court.

22. The appeal is dismissed with the direction that the
respondent mother, before taking the child to Australia, must
file an undertaking to the satisfaction of the Court of the
Additional District Judge 1, (West), Delhi within a period of
four weeks from date. No order as to costs.”

61. SectionIn Gaytri Bajaj v. Jiten Bhalla reported in 2012 (12) SCC

471, the Hon’ble Supreme Court held that an order of custody of a minor

children is required to be made by court treating the interest and

welfare of minor to be of paramount importance. Further held that it is

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not the better right of either of the parent, to custody, but the desire,

interest and welfare of minor which is crucial and ultimate consideration

that must guide determination required to be made by court. In the said

case, the Hon’ble Supreme Court held that the children having expressed

their reluctance to go with mother, even for a short duration of time or

to meet her, any visitation right to mother would be adverse to the

interest of children. In the said circumstances, it has held as follows:

“12. The law relating to custody of minors has received
an exhaustive consideration of this Court in a series of
pronouncements. SectionIn Gaurav Nagpal v. Sumedha Nagpal
[(2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1] the principles of
English and American law in this regard were considered by
this Court to hold that the legal position in India is not in any
way different. Noticing the judgment of the Bombay High
Court in SectionSaraswatibai Shripad Ved v. Shripad Vasanji Ved [AIR
1941 Bom 103] , SectionRosy Jacob v. Jacob A. Chakramakkal [(1973)
1 SCC 840] and SectionThrity Hoshie Dolikuka v. Hoshiam Shavaksha
Dolikuka [(1982) 2 SCC 544 : 1982 SCC (Cri) 505] this Court
eventually concluded in paras 50 and 51 that: (Gaurav
Nagpal case [(2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1] , SCC p.

57)
“50. That when the court is confronted with conflicting
demands made by the parents, each time it has to justify the

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demands. The court has not only to look at the issue on
legalistic basis, in such matters human angles are relevant
for deciding those issues. The court then does not give
emphasis on what the parties say, it has to exercise a
jurisdiction which is aimed at the welfare of the minor. As
observed recently in Mausami Moitra Ganguli case [SectionMausami
Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673], the
court has to give due weightage to the child’s ordinary
contentment, health, education, intellectual development
and favourable surroundings but over and above physical
comforts, the moral and ethical values have also to be
noted. They are equal if not more important than the others.

51. The word ‘welfare’ used in Section 13 of the Act
has to be construed literally and 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.
Though the provisions of the special statutes which govern
the rights of the parents and 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.”

13. The views expressed in paras 19 and 20 of the
Report in SectionMausami Moitra Ganguli v. Jayant Ganguli [Mausami
Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673] would
require special notice. In the said case it has been held that

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it is the welfare and interest of the child and not the rights
of the parents which is the determining factor for deciding
the question of custody. It was the further view of this Court
that the question of welfare of the child has to be
considered in the context of the facts of each case and
decided cases on the issue may not be appropriate to be
considered as binding precedents. Similar observations of
this Court contained in para 30 of the Report in SectionSheila B. Das
v. P.R. Sugasree [(2006) 3 SCC 62] would also require a
special mention.

14. From the above it follows that an order of custody
of minor children either under the provisions of the
Guardians and SectionWards Act, 1890 or the Hindu Minority and
SectionGuardianship Act, 1956 is required to be made by the court
treating the interest and welfare of the minor to be of
paramount importance. It is not the better right of either
parent that would require adjudication while deciding their
entitlement to custody. The desire of the child coupled with
the availability of a conducive and appropriate environment
for proper upbringing together with the ability and means of
the parent concerned to take care of the child are some of
the relevant factors that have to be taken into account by
the court while deciding the issue of custody of a minor.
What must be emphasised is that while all other factors are
undoubtedly relevant, it is the desire, interest and welfare

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of the minor which is the crucial and ultimate consideration
that must guide the determination required to be made by
the court.

14. From the above it follows that an order of custody
of minor children either under the provisions of the
Guardians and SectionWards Act, 1890 or the Hindu Minority and
SectionGuardianship Act, 1956 is required to be made by the court
treating the interest and welfare of the minor to be of
paramount importance. It is not the better right of either
parent that would require adjudication while deciding their
entitlement to custody. The desire of the child coupled with
the availability of a conducive and appropriate environment
for proper upbringing together with the ability and means of
the parent concerned to take care of the child are some of
the relevant factors that have to be taken into account by
the court while deciding the issue of custody of a minor.
What must be emphasised is that while all other factors are
undoubtedly relevant, it is the desire, interest and welfare
of the minor which is the crucial and ultimate consideration
that must guide the determination required to be made by
the court.

15. In the present case irrespective of the question
whether the abandonment of visitation rights by the wife
was occasioned by the fraud or deceit practised on her, as
subsequently claimed, an attempt was made by this Court,

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even by means of a personal interaction with the children, to
bring the issue with regard to custody and visitation rights to
a satisfactory conclusion. From the materials on record, it is
possible to conclude that the children, one of whom is on
the verge of attaining majority, do not want to go with their
mother. Both appear to be happy in the company of their
father who also appears to be in a position to look after
them; provide them with adequate educational facilities and
also to maintain them in a proper and congenial manner. The
children having expressed their reluctance to go with the
mother, even for a short duration of time, we are left with
no option but to hold that any visitation right to the mother
would be adverse to the interest of the children. Besides, in
view of the reluctance of the children to even meet their
mother, leave alone spending time with her, we do not see
how such an arrangement i.e. visitation can be made
possible by an order of the court.

16. Taking into account all the aforesaid facts, we
dismiss these appeals, affirm the impugned orders [(2008)
106 DRJ 651] , [SectionJiten Bhalla v. Gaytri Bajaj, (2009) 111 DRJ
292] passed by the High Court of Delhi and deny any
visitation rights to the petitioner and further direct that the
children would continue to remain in the custody of their
father until they attain the age of majority.”

62. Though reasons have been assigned by the learned Family

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Court Judge, which we shall discuss in the latter part of this judgment,

both the learned counsel appearing for the parties, took us through the

entire pleadings and evidence recorded in the proceedings, which this

Court deems it fit to consider in the best interest of the child.

63. Inter-se rights of the parents to have custody of the child,

based on examination of their evidence, is not a matter to be considered

by the Courts, in the matter of custody of the child, but it is the

paramount interest and welfare of the child. Keeping in mind, the above

principle, on the facts and circumstances of this case, this Court deems

it fit to consider, as to whether the Family Court has considered evidence

of the psychiatrist, and evidence adduced by the parties; whether the

Family Court has given due consideration to the child’s wishes and

preferences; whether the child has been brought with all comforts;

whether the child is living in a disadvantagous position, in the absence of

father and would continue to live; whether there is violation of

visitation rights; whether such violations affected the child; whether

variation of visitation rights in future would affect the child. On the

whole, is there a change in circumstances, warranting change in custody

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and ultimately, keeping in mind, the paramount interest and welfare of

the child, who should be given the custody of the child.

64. I.A.No.2779 of 2009, is dated 28.10.2010. Material on record

shows that the child was brought to the Court/Child Care Centre on

05.02.2011, 29.03.2011 and 10.04.2011. According to the respondent-

father, mother did not produce the child. As she was going to America,

case was adjourned to 04.11.2011. However, a direction was given to the

appellant to produce the child on 22.10.2011. She did not produce the

child. Father went to the house of the appellant’s mother, along with a

counsellor. Child was produced with hesitation.

65. Per contra, the appellant-mother has stated that on

25.06.2011, the Presiding Officer told the parties that when asked as to

whether the appellant was preventing the child from seeing and talking

with the father, the child shook his shoulders in the affirmative. Mother

has stated that the Presiding Officer has mistook the child’s body

language. According to the appellant, on 03.01.2013, the Presiding

Officer spoke to the child to assess the child’s preference, but the child

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clearly informed him that he is not interested to talk or move with the

father. On 19.04.2013, in I.A.No.2779 of 2010 in F.C.O.P.No.3499 of 2010,

the Presiding Officer has categorically recorded that the child was not

willing to talk to his father.

66. According to the respondent/father, in 2010, the child went

into tears, and the child longed for love and affection of his father. But

the mother has denied the same, and added that, as an internal

arrangement, child was permitted with the father. On 19.04.2013, the

Presiding officer has recorded that the boy was not inclined to see his

father, when he had a talk to the boy. But the fact remains that only

after considering the rival submissions of the parties, allegations of

brainwashing and denial of visitation rights, the Presiding Officer wanted

to have a psychological evaluation report and thus, sought for an

opinion.

67. Keeping in mind the decisions of the Hon’ble Supreme Court

in repeated judgements, cited supra, let us consider, as to whether, the

Court below has applied with the principles of law, to the facts and

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evidence.

68. Contention of the respondent/father is that there was a

previous examination of the child, by the Presiding Officer and he

observed that the child was prevented by the appellant-mother, which

she has denied. On the contra, it is the submission of the learned counsel

for the appellant that the Presiding Officer, during his interaction, has

observed that the child was not willing to talk to his father. That apart,

the Presiding Officer has obtained the opinion of an expert, but failed to

consider the same.

69. Notwithstanding the individual opinion of the Presiding

Officers, we deem it fit to observe that the opinion by an expert on the

psychological report of the child, should have been considered, for

arriving at a decision, as to what, in the best interest of the child, is the

paramount consideration. Expert opinion having been called for, by the

Court, cannot be simply ignored. In the case on hand, there is no reason,

as to why, the Family Court, which had called for a report, did not

consider the same, for reversing custody.

70. Expert opinion, by the psychiatrist is opposed on the ground

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that the respondent/father has not been examined. Dehors the

objections made by the respondent-father, we deem it fit to extract the

opinion of the expert and objects. Ex.C1, Psychological report, reads

thus:

From
Dr.V.Jayanthi
Head of the Department
Child Guidance Clinic
Institute of Child Health Hospital for Children
Halls Road, Egmore, Chennai – 600 008.

To
Thiru.T.C.S.Raja Chockalingam, B.Com, B.L
Principal Judge,
Family Court, Chennai – 104.

DIS No.950/2011 dated 21/07/2011

Sir,

Sub: Psychological Evaluation of minor by Master
Siddharth aged 7 years.

Ref: I.A. 2779/2010 and I.A. 380/2011 in OP.3499/
2009 – Dr.C.S.Mani – Peittioner Dr.V.Sri Devi-
Respondent.

I have interviewed the petitioner Dr.C.S.Mani, the
respondent Dr.V.Sri Devi and also their son Master.Siddarth
on different dates during the past 3 weeks.

Dr.Sangeetha Madhu, Asst. Professor of Psychology,
Child Guidance Clinic, Institute of Child Health and Hospital

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for Children, Chennai – 8, did a psychometric evaluation by
administering a few psychological tests and her report is
enclosed herewith.

Based on the above clinical and psychometric
evaluation, I have come to the following conclusions.

1. Master.Siddharth is a boy of above average
intellectual capacity and his IQ falls in his superior range.
He was quire aware of the prevailing situation regarding
the court case about his father’s visitation rights.

2. It did not appear that Siddharth had been
prevented by the respondent/mother to see his biological
father. He very clearly stated that his mother was not
interfering (or) influencing him in this regard.

3. The boy did not accept that he had any inherent
love and affection with the petitioner/father. He
categorically stated that he did not want to see his father,
talk to him over the phone (or) go out with him, when
asked whether his father can visit him at his maternal
grand parent’s house he simply shrugged his shoulders.
When questioned about the implication of that gesture,
he said that it meant ‘No’ as an answer.

4. Both his verbal and non-verbal expressions had
clearly indicated that he had intelligent preference to
express his wishes and his mother has never tutored him.
Whenever I tried to talk about his biological father, he

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went into a shell, refused to look at him and showed his
displeasure non-verbally. His mother, infact told me to
convince and encourage him to go out with his biological
father if ‘I’ as an expert felt that it was for the betterment
of the child.

5. During the examination, the boy was found to be
manipulative, gave certain statements/answers which
were refuted by his mother in his presence for e.g., He
told me that his step father was not working anywhere at
present. When confronted, he changed the statement and
said, his step father works only during the week ends.
When I told him that I will go and verify fact in the Cancer
Institute, he said, his step father works during weeks days
too. During the evaluation period, I noticed that the boy had
a tendency to give certain statement and answers, which he
changed when confronted on certain other issues too.

6. In the Psychometric Testing, the Sentence
Completion Test which is projective in natural showed that
the boy wants his son – biological father to instruct him to
perform the tasks and his weakness is his affection for his
mother.

7. I had individually interviewed the biological
parents, and in my opinion the parenting style of the
respondent/mother is not unconducive to the welfare and
future of the child.”

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Ex.C2 – Psychometric Evaluation, reads hereunder:

Name of Patient: Master.Siddharth 2 August 2011
D.O.B. : 11.04.2004 S.No.392
Age : 7 years 4 months

PSYCHOMETRY TESTING

TESTS RESULTS
On CPM (Coloured Progressive Matrices):

Total Score – 33
Percentile Rank – 95
Grade -1
Description – “Above Average Intelligence”

PERSONALITY AND DIAGNOSTIC ASSESSMENT

On CAT (Children’s Apperception Test): The stories indicate
that he has a strong need for achievement. He tends to have
perfectionistic tendency and obsessive symptoms. He has
fear of failure, is sensitive to criticism and has fear of
rejection. He tends to identify with his mother and has
sees her as a strong attachment figure. He tends to have
need for approval and acceptance.

On Sentence Completion Test (SCT):

 He tends to be optimistic and hopeful
 He wants his (non biological) father to instruct him to
perform tasks
 He considers his mother to be his weakness
(affectionate towards to her)

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 He enjoys being with his friends
 He enjoys playing cricket and relay
 He tends to be sensitive to criticism and rejection

Multiple Intelligences

Naturalistic Intelligence
 I like to recycle/reuse things
 I watch news about saving our environment
 I like magazines and books about nature
 I like climbing pretty mountains and camp out
 I like products and ideas that will protect out
environment

Musical
 My voice sounds good when I sing
 I can tell when a song is on a wrong key or out of pitch
 I listen to music a lot

Intrapersonal
 I want to learn more about myself
 I can cheer up after a setback like getting low marks
or losing a favourite toy
 I have a hobby that only I do alone
 I know about myself and also what my strengths and
weaknesses are

Bodily/Kinesthetic

 I play at least one sport or physical activity
regularly
 I cannot sit one place for a long time
 I like to use my hands to make a model building
or do crafts
 I get very good ideas when I am running or
jogging
 I like to spend my free time outdoors

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Early School Personality Questionnaire (ESPO):

 Cool, reserved, impersonal, detached, formal aloof
 Emotionally stable, mature, faces reality, calm
 Phlegmatic, undemonstrative, deliberate, placid,
inactive
 Obedient, mild accommodating, submissive,
conforming
 Enthusiastic, heedless, cheerful, expressive, happy-go-

lucky
 Expedient, disregards rules, self-indulgent
 Bold, venturesome, uninhibited, spontaneous,
unafraid
 Tender-minded, intuitive, over protected, sensitive,
refined
 Vigorous, goes readily with group, zestful, given to
action
 Forthright, natural, artless, open, native
 Self-assured, secure, feels free of guilt, untroubled,
self-satisfied
 Tense, frustrated, overwrought, has high drive

Test Findings:

Master.Siddharth’s Psychological assessment indicates

 Above Average Intelligence (Percentile – 95)
 His strengths include naturalistic, musical,
intrapersonal and kinesthetic skills
 Mild anxiety features
He may benefit from anxiety reduction techniques and
parental counselling.

SANGEETHA
9.8.2011

71. Adjustment of the child with the step father with whom the

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child did not spend much time is one of the observations of the Family

Court. Let us consider what the child before the Psychiatrist has stated

about the stepfather.

“During the examination, the boy was found to be
manipulative, gave certain statements/answers which were
refuted by his mother in his presence for e.g., He told me
that his step father was not working anywhere at present.
When confronted, he changed the statement and said, his
step father works only during the week ends.”

72. Let us also consider how the child has reacted to the questions,

posted by the Psychiatrist,

“Both his verbal and non-verbal expressions had clearly
indicated that he had intelligent preference to express his
wishes and his mother has never tutored him. Whenever I
tried to talk about his biological father, he went into a shell,
refused to look at him and showed his displeasure non-
verbally. His mother, infact told me to convince and
encourage him to go out with his biological father if ‘I’ as an
expert felt that it was for the betterment of the child.”

73. Child during examination by the Psychiatrist has stated that

the stepfather should instruct him to perform the child’s tasks. He

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considers his mother to be his weakness (affectionate towards him). He

tends to identify with his mother and sees her as a strong attachment

figure. Child did not not say anything adverse against the step father.

Child does not appear to show any disinclination towards his step father

nor from the report of the Psychiatrist, there is any material to arrive at

a conclusion that the child was in a disadvantageous position.

74. The psychiatrist in her report has categorically opined that the

child has intelligible preference to express his wishes and the mother

never tortoured him. True that the psychiatrist has observed that child

had gone into shell, when questions were posed about his biological

father, but the psychiatrist has also observed that the child refused to

look at him and showed his displeasure non-verbally. When the

psychiatrist in her opinion has categorically concluded that the child has

intelligible preference to express his views, Court is not a better expert,

to assess the child, by once again examining the child.

75. Expert has clearly opined that the child is aware of the court

proceedings and visitation rights of his father. Observation of the expert

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has been recorded in Paragraphs 2 to 4. Psychiatrist has reported that

when questions were posed, regarding the workplace of his stepfather,

child’s answers were not clear. Ultimately, the psychiatrist has offered

her opinion, that after going the physical emotion of the child, the

parenting style of the mother is not unconducive to the welfare of the

child.

76. Let us consider the submissions of the learned counsel for

the respondent/father, on the attitude of the mother that she had

already decided to snap the love and affection of the father, with his

child, from the beginning. Diary entries, relied on by the respondent, are

as follows:-

“1st January 2004
“Since midnight i.e. New year, I am repeatedly
reminding myself of the impending hurdles I am to face this
year. Delivery and a possible divorce. The child may be a
distraction …. It’s difficult to tell. I am, ofcourse prepared
(since Out 2003) about the fact I will be a single parent
caring for my child.”

26th June 2004
The problem surfaces again – that time it’s the

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mistakes – he wants. C.S.Siddhartha – I refuse to have his
father’s – for my son. I also tell Mani that he is ashamed to
tell his people that he has let his wife have her initials in
front of their son’s. He again insists that it be one cooking at
Alwarpet. I make my stand clear and also tell him that if he
is to keep on harping at the same issues, I do not wish to
continue the relationship.

I also add the ‘depression factor’. In anquish I call
madam, Pemmi. I feel better after speaking to them.

30th June 2004
My weakness. Short Temper, inadjustability (more by
choice). adamancy.”

77. It is a fact that the appellant has recorded in her diary that

the child would be brought up, as a single parent but that cannot be

treated as the basis for forming an opinion that the appellant even at the

earliest point of time had decided to prevent visitation rights of the

respondent. Those entries were written in the year, 2004. Mutual decree

for divorce was granted on 10.11.2009, with visitation rights.

78. Contention that the mother had already expressed her desire

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to bring up the child, as a single parent and thus, written in her diary,

cannot be a reason, to deny custody to the mother, for the reason that

she no longer remains to be a single parent. After divorce in 2009, she

got remarried in the year 2010. Child Siddarth has been brought by the

mother and stepfather, maternal grand parents, all along.

79. In so far as the denial of visitation rights and letters exchanged

between the parties, that on 10.05.2006, the appellant had written a

letter to the learned counsel for the respondent, even before filing of

the petition for divorce by mutual consent, but stated that the custody

of the minor child will be with her. Expressing opinion over custody of the

child will be with the mother, would not amount to denial of visitation

rights. As mother, she is entitled to state so. In her letter dated

10.05.2006, she has stated that the respondent can have visitation rights

once in a week for half an hour.

80. In the subsequent letter dated 17.05.2006, sent by the

appellant to the learned counsel for the respondent, she has stated that,

“as far as the visitation rights are concerned she has suggested that the

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respondent may visit the child once in a week for a duration of half an

hour. Timing can be fixed after discussion. In the said letter, she has also

made it clear that the respondent did not visit the child from September

2004 to July 2005. She has denied the allegation that the respondent was

made to wait outside.” For brevity, the relevant portion of the letter

dated 17.05.2006, is reproduced:-

“Further I wish to inform you that your client did not
visit the child from September 2004 to July 2005. From July
2005 he was making sporadic visits – approximately once a
week. These visits would last about half an hour and they
were all done in an absence. Now after you have issued the
legal notice dated 13.02.2006, he is making daily visits and
sometimes twice a day. These visits are also in my absence.
Of late, in the last 3 weeks he forcibly takes take the child
out of the house to shops (bakery, bookstores etc), that are
located about one kilometer from my house, against the will
of my parents. As far as you statement that you client is
made to wait for hours outside and that we create ugly
scenes, I totally deny the same. He never informs me or my
parents about his proposed visits and always takes us by
surprise.”

81. In the third letter dated 30.05.2006, the appellant has stated

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as hereunder:-

“The visitation rights can be once a week for a period
of half an hour. My understanding of the ‘visitation’ rights is
that you may visit the child at the place that the child is
presently residing – in this case at my parent’s house at a
specified time of the week and for a fixed period. It does not
entail you to take the child out of the house, particularly
against the will of my parents, who are in-charge of the child
in my absence ie, when I go to work. Ever since my last reply
to your lawyer dated 17.05.2006, which has been duly
received on 18.5.06, I have made a record of your visits to
my parent’s house. They are as follows:

“18.05.06 Visit at 6.20 pm, take the child out for a
walk, return at 7.30 pm despite being told by the nurse not
the take the child out. Nurse accompanies the child.

20.05.06 Visit at 5.30 pm, informed that the child is
asleep, you leave
21.05.06 Visit at 10.40 am, take the child out in the
car to the shop Odyssey at Adyar, despite being told by the
nurse not to do so, for a period of 1 hour, 20 mts. Nurse
accompanies the child.

23.05.06 Visit at 5.15 p.m.-nurse inform you that the
child is asleep, you leave saying that you will return.

24.05.06 Visit the child a 5.30 pm, take the child out
to the beach in the car, despite being told by the nurse that

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you should not take the child out. Nurse accompanies the
child.

27.05.06 Visit the house at 5.15 pm, nurse tells you
that the child is asleep. You leaave
28.05.06 Visit the child at 10.40 am, despite being told
that the child should not be taken out you take the child to
the Children’s park and the Cancer Institute, in the car for a
total period of 2 hours and 20 minutes. Nurse accompanies
the child.

From the above record you will yourself see that all your
visits are unscheduled. Besides you are taking the minor
child out of the house wherein he and myself are presently
residing since September 2004. Each time you are being told
not to take the child out of the house but you do not pay any
notice to the same. The order fact is that almost all your
visits are made when I am not present in the house.

In the present situation I have not yet received any
reply to my notice dated 17.05.06. I request you to restrict
your visits to once a week, for a period of half an hour, and
not take the child outside the premises of my parents’ house
pending court settlement regarding visitation rights.”

82. From the correspondence it could be seen that the

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respondent has been visiting the house of the appellant’s parents with

whom she was living with the child and that according to the appellant,

visits by the respondent were without information and that the child was

taken out of the house. Emotional feelings of the father/respondent to

be with the child is understandable that he wanted to spend more time

with his child. But whatever the appellant has recorded in her diary, are

before the parties decided to file a joint petition for divorce, by mutual

consent. Merely because the appellant had suggested in her letters, sent

for visitation rights, restricting the time, once in a week, for half an

hour, before the filing of the joint institution by mutual consent for

divorce, it cannot be concluded that the appellant has intended to snap

the relationship of father and son, once in for all.

83. Visitation rights have been granted in the order dated

10.11.2009 in F.C.O.P.No.3499/2009. It is the contention of the

respondent that visitation rights have been denied, child was

brainwashed, normal with others, and not normal with the biological

father. Appellant has remarried in June’ 2010. Therefore the respondent

has filed I.A.No.2779/2010 in O.P.No.3499/2009, at paragraph Nos.5, 7

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and 8 of the appellant, the respondent has contended as follows:-

“5. I was visiting the child promptly and taking him
out. He was very fond of me. I was keenly interested in the
welfare of the child. I gave all the affection that he needed.
But being more under the custody of the mother, the
Respondent herein had greater influence on the child. She
started brain washing the child. She took him abroad and his
whereabouts were not kept updated. All other forms of
communication during the non-visiting days were deprived.
She even kept back from me the information that she had
some other person in mind whom she marred immediately
after the mutual Divorce Decree was ordered in
F.C.O.P.No.3499 of 2009 on 10.11.2009. The dislocation of
the child to a new place had added further pressure to the
bonding towards towards the natural father.

7. But after the divorce proceedings the boys attitude
changed. It could not be explained in any other way other
than that the Respondent herein (mother) is influencing the
child. It is not an healthy attitude. This was because the
child was spending more time the mother. Conciliatory
approaches asking her brother or herself to bring the child to
some common place was vehemently resisted putting aside
the welfare the the child concerned to have a balanced
upbringing.

8. I submit after July 2010 the Respondent herein

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(mother) kept me away from the visitation rights. I
therefore sent a legal notice dt. 9.8.2010 stating she got
married to someone who had got two grownup children and
my child Siddarth would not get proper attention, it would
not be conducive to the growth of the child. I initially
insisted for my visitation rights and also for the complete
custody of the Child. The respondent sent a belated reply dt.
18.09.2010 denying all those allegations and stated she
would not bring the child to any other place other than her
mothers place from where I could take the child.”

84. In I.A.No.2779/2010 in F.C.O.P.No.3498/2008, filed on

28.10.2010, the respondent has sought for a modification of the order

dated 10.11.2009, to the effect directing the appellant to bring the child

to the Family Court, Children Care Centre in High Court. He has stated

that after July’ 2010, she kept him away from the visitation rights and

therefore, he sent a legal notice, which was replied on 18.09.2010.

There are no documents to indicate that he had visited the child from

2006 till July’ 2010.

85. On the aspect of denial of visitation rights, respondent

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though his lawyer’s notice dated 30.04.2012 has stated as hereunder:

“On 26.04.2012 as an interim arrangement you had
agreed that our Client can come to your mothers house at
Sastri Nagar and take the child Siddarth at 9 a m and you
would come to his house and take the child back at 5 p.m
on 29.04.2012. Though our Client had his own misgivings
about it because on earlier occasions also when our Client
came to your Mothers place you had stated that the child
is not coming out to go with the father. That is why he
filed the above Petition and the Principal Family Court
Judge directed you to produce the child before the Child
care centre. The Child was produced twice and our Client
spend sometime with the child. Thereafter counselling was
done and in order t a delay matter you had applied for
transfer Of the case. As a result the child has been kept
away from our Client for several months. Our Client had
agreed to come and take the child at yours mothers place
on 29.04.2012 because you had specifically agreed that the
Child would be sent on that date. But contrary to your
assurance before the Family Court on 29.04.2012 at 9 am
when our Client came to your mothers place, you told our
Client that same old story that the child is not willing to
come. Our Client states that because of the prolonged
custody of the child with you, you had brain washed the
child and that is not a good development for the child.

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Therefore our Client filed a custody petition for which you
had taken time for counter.

As an interim measure you had agreed to our client
taking the child on 29.04.2012 and on the subsequent
occasion you promised to bring the child to our clients
place. Our client states that your attitude on 29.04.2012 is
clearly a breach of your agreement and the order passed
by the Court on 26.04.2012 that too on the basis of your
consent. Our Client states that you are behind the child
not going to the father. This would dearly amount to
contempt of courts order.

Please take notice that our Client will he wing a
Petition for directing you to implement the order dt
26.04.2012 by producing the child before the Court and
also seek custody of the child giving you visitorial rights.

Please take notice that your conduct is clearly in
breach of the conditions you agreed to in the order dt.
10.11.2009 passed in FCOP 3499 of 2009 regarding
visitorial rights.”

86. For the above, the appellant has sent a reply dated

11.05.2012, as here under:

“With reference to the allegation that your client

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had doubt in his mind about the said arrangement, my
client wish to state that your client is very well aware of
the fact that the child would not come along with your
client because he distanced himself from the child ever
since March 2009. Even on those occassions the child was
brought to the child care centre at the instance of the
then Presiding Officer, the child bluntly refused to talk
with your client and not even looked at him/In spite of the
fact that your client was alone with the child in the Child
Care Centre. The following facts would reveal the real
reason behind the child’s resistance:-

a) It is an admitted fact that the child has never
lived with the father except as an infant for 2 months i.e.,
from 15-7-2004 to 26-9-2004.

b) during the year 2008-2009, the maximum time
spent by the petitioner with the child was for about 3
hours between 10.00 a.m to 1.00 p.m. that too for few
visits only.

c) The child refused to go with the father from the
last week of March, 2009 despite persuation.

From the above facts it is evidently clear that your
client distanced himself from the child for more than
three long years. The child is now aged about 8 years. It is
common knowledge that a grown up child cannot be thrust
in the hands of the father like an infant. If the boy refuses

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or reluctant to go with the father, the mother is helpless
and absolutely there is no meaning in blaming the mother
for the boy’s act. My client states that at most my client
can orally persuade the child to go with the father but
when the child is adament, mother is helpless and she has
no right to compel the boy to go against his wish. It is
relevant to state here this is not the first time the child
Siddarth refused to go with the father – As a matter of
fact ever since March 2009, the child is very firm in not
going with the father in spite of my client’s sincere
persuation. It is common knowledge that affection cannot
be thrust on a person or child as well as it cannot be
plucked away. This fact your client still fails to understand
and repeatedly making allegation that my client brain
washed the child.”

87. The Presiding officer has suggested psychological evaluation

of the child. When I.A. No.2779/2010 was pending, after the report,

dated 09.08.2011, the respondent has filed I.A.No.3648 of 2011 in

O.P.No.3499 of 2009, on 19.11.2011, praying to take custody of minor

Siddarth, with visitation rights to the mother. In her counter affidavit to

I.A.No.3648 of 2011, the appellant has denied the contention that the

child cried. For brevity, portion of the same is extracted:

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“The child on hearing that he should see his father
shed tears. This proves that the child was really not
interested to see his father but agreed for the same more
out of compulsion than desire. The respondent submits that
the court has not passed any specific order as alleged by the
petitioner and it is only an arrangement to ascertain the real
truth about the petitioner’s allegation that the mother is
preventing the child from going with the father and also to
ascertain whether the child is really interested to see the
father. As advised by the then Principal Judge, the child was
brought to the Child Care Centre on 29-3-2011, 10-4-2011
and 24-4-2011. On the first day of the visit i.e., on 29-3-
2011 child literally cried on seeing the father even though
mother was present. On the subsequent two visits i.e., on
10-4-2011 and 24-4-2011 father alone was with the child in
the Child Care Centre. Even though father alone was there,
the child refused to talk or play with the father. In fact, the
respondent requested the then Judge to make surprise visits
to assess the child’s behaviour with the father. Accordingly,
the then Judge Thiru.Meenakshi Sundaram made surprise
visits to the Child Care Centre and took Judicial note of the
child’s reluctant behaviour with the father. The further
allegation that the respondent did not allow the petitioner
to see the child is false.”

88. On 19.04.2013 in I.A.No.2799 of 2010 in O.P.No.3499 of 2010,

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the Family Additional Judge passed the following order.

“Of course as per the order for the mutual consent
F.C.O.P.No.3499 of 2009 visitation rights was given to the
petitioner. The petitioner himself has stated that the
child has changed his attitude after divorce. Even this
Court could understand that the boy was not inclined to
I see his father, when this court had a talk to the boy.
But this court having considered that the petitioner being
the father and considering the circumstances direct the
respondent to bring her son to the Children Center. Family
Court Premises from 11. a.m to .1.00. p.m on 2nd Sunday
and 4th Sunday of every month, so that the petitioner
could able to see and talk to him. Thus the point is
answered accordingly.

89. On the contention of the learned counsel for the

respondent/father that the child was induced and brainwashed, which

resulted in the attitudinal change, we have already considered what the

Presiding officer has recorded, while examining the child. Psychiatrist has

conducted various tests, for three weeks, interviewed the biological

parents and given a report. Even taking it for granted that the child was

in the exclusive custody of the mother/appellant, from the reading of

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the report, in its entirety, there cannot be any conclusion that the

custodial rights of the mother have been abused, adverse to the

visitation rights of the father, nor the child’s rights were wholly snapped.

Before the Psychiatrist, the child has categorically stated that he did not

want to see or talk to his father.

90. From the above, it could be seen that the child was not

inclined to see his father, when the court asked the child to talk to his

father. On the aspect of brainwashing and tutoring, in the report of the

psychiatric dated 17.08.2011, the expert has clearly stated that the child

was not prevented by the mother to his biological father. Mother was not

interfering or influencing him, in this regard. The child did not accept,

that he had any inherent love and affection with the father. From the

report it could be seen that when the child was posed with questions

relating to work of his step father, he had given wrong answers and

thereafter changed.

91. Though the psychiatrist has observed that the child was

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manipulative, that would not be a conclusive proof to arrive at a

conclusion that the mother had brainwashed him. During the

examination, child has categorically stated that the mother had not

prevented him from seeing the father. He has also stated that mother did

not interfere or influence the child. Contention of the respondent is that

he was not examined by the psychiatrist, but she has opined that

parenting by the mother is not unconducive to the welfare and future of

the child, which according to the respondent, is erroneous. Examination

is not for the parties. But the expert has clearly recorded that she has

interviewed both biological parents. As observed earlier, expert opinion

sought for and obtained by the Court, cannot be brushed aside.

92. In the case on hand, the change in circumstances which

required the respondent/father, file a modification petition for reversal

of custody are denial of visitation rights of the mother, snapping the

child’s rights to his natural father, undue influence over the child due to

long custody and in sum and substance, brainwashing the child. Taking

the child outside the jurisdiction of the court without information to him

or to the court and protraction of the proceedings. Answer of the

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appellant is that visitation was without information, taking the child

outside by the father was not permitted. Contra submission of the

appellant/mother, is that the respondent father did not visit the child,

besides the child did not go with the father, and the appellant did not

stand in the way of the father visiting the child, and in particular, she

cannot force the child to be with the father, when the child did not,

chose to do so.

93. Family Court has observed that when a male child reaches the

adolescent age, he wants to share a lot of things with the father as a

friend, and that the father must treat him as his friend. We deem it fit to

consider, as to what the child with a reasonable intelligible quotient has

decided and expressed in his clear terms. General propositions would not

be a deciding factor, in the matter of deciding custody of a child.

Keeping in mind the principles of law laid down by the Hon’ble Supreme

Court, in various decisions, paramount interest and welfare of the child,

court has to consider what the child has also expressed.

94. For reversing the custody to the father, Family Court, has

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concluded that, it is the right age of a male child to be under the care

and custody of the father. Family court has also stated about the status

of the respondent/father. Though tender age and gender, are some of the

factors to be taken into account while ordering custody to the mother or

father, as the case may be, even then, the court has to consider as to

whether it would be in the paramount interest and welfare of child,

financial position of the mother, the need to provide education, physical

comforts, well being of the child, family circumstances of the parents,

and such other factors. Age of the child Siddharth, at the time of decree

for divorce by mutual consent was 7 years. He is living with his mother

and her parents, for nearly 12 years.

95. Status appears to be have been one of the reasons for changing

custody of the child. Going through the material on record, we find no

change in the status of the rival parties. Both are doctors by profession.

96. Contention of the respondent/father that by denying

visitation rights, the appellant has created an imbalance between the

child and his father, cannot be accepted. There may be aberrations of

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visitation rights, but giving due consideration to the conduct of the child

and wishes on his preferences, based on the intelligible quotient assessed

by the psychiatrist, it is clear that the child was not interested to see

and talk to him, when the child was examined by the psychiatrist in the

presence of father. It should also be noted that the psychiatrist has taken

sufficient time to study the psychiatry of the child.

97. Generalisation in favour of the mother or the father, as the

case may be, has not been approved by the Hon’ble Supreme Court.

Expected company of the father, with his son, appears to be one of the

factors taken into consideration by the Family Court. Education and

sports activities of the child indicate that that the child has been given

comforts and nurtured, paying due attention to the best interest of the

child. In the case on hand, finding of the Family Court that being a

biological father, respondent can give good education, affection and

more comforts, cannot be accepted, for the reason, both are

professionals, Doctors and well placed. Therefore, finance cannot be a

reason for change of custody.

98. True that the child was in the custody of the mother, her

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parents, her husband, step father. All along, he has been brought up in

the company of the above. Whether shelving by the child, to certain

querries, posed by the psychiatrist, would itself give rise to a conclusion

that the child was brainwashed and tutored, the vital evidence of the

psychiatrist, in her conclusion is that, “it did not appear that Siddharth

had been prevented by the mother to see his biological father and that

the boy has clearly stated that his mother was not interfering or

influencing him in this regard.

99. Whether the child has any inherent interest, love and

affection, towards his natural father, it would be seen from the report,

to the querry, as to whether, he can visit him, at his maternal

grandparent’s house, the child has answered thus,

“3. The boy did not accept that he had any
inherent love and affection with the
petitioner/father. He categorically stated that he did
not want to see his father, talk to him over the phone
(or) go out with him, when asked whether his father
can visit him at his maternal grand parent’s house he
simply shrugged his shoulders. When questioned
about the implication of that gesture, he said that it

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meant ‘No’ as an answer.”

100. As regards intelligible preference between the rival parties,

the psychiatrist has clearly opined that the child expressed his wishes.

Choice of the child does not appear to be in favour of the respondent-

father.

101. In Lekha’s case (cited supra), though the father therein has

contended that the mother, who got remarried, would not spend her

time, for the welfare of the child, the Hon’ble Apex Court has rejected

the said plea, that mere remarriage is not a ground to deny custody. The

Hon’ble Apex Court has categorically observed that at the time of

interview, the boy has expressed his willingness and desire to live only

with his mother, and when the boy says, he prefers to live with his

mother, the Apex Court was of the view that it would be beneficial for

the boy and his education, for a better future. One of the issues raised in

the present appeal before us, regarding remarriage of the appellant with

a person with two children and that therefore, custody to be given to the

father. Following Lekha’s case, we reject the said contention.

102. In Lekha’s case, the Hon’ble Apex Court has also considered

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that child therein was living with his mother for several years and

separation will affect the mental condition and education of the child.

On the facts and circumstances of the case, the Hon’ble Apex Court also

observed that,

“It is not in dispute that the boy is living with his
mother for the last several years and the separation at this
stage will affect the mental condition and the education of
the child and considering that the child himself attaches
importance to his education if the custody is to be given to
the father will now affect his academic brilliance and
future.”

103. Dr.Nithya Vidyaprakash’s case, relied on by the learned

counsel for the respondent-father, cannot be cited as a precedent to

decide custody of child, as the Court, after considering the material on

record, opined that aspect of custody can be decided only after

recording evidence and thus, remitted the matter back to the family

Court.

104. Similar to the contentions made in the present appeal, in

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Vikram Vir Vohra’s case, the child had been to Australia and there were

variations in the visitation rights. Addressing the said aspect, the Hon’ble

Supreme Court, at Paragraph 18 of the judgment, observed as hereunder:

“18. Now coming to the question of the child being
taken to Australia and the consequent variations in the
visitation rights of the father, this Court finds that the
respondent mother is getting a better job opportunity in
Australia. Her autonomy on her personhood cannot be
curtailed by the Court on the ground of a prior order of
custody of the child. Every person has a right to develop his
or her potential. In fact a right to development is a basic
human right. The respondent mother cannot be asked to
choose between her child and her career. It is clear that the
child is very dear to her and she will spare no pains to ensure
that the child gets proper education and training in order to
develop his faculties and ultimately to become a good
citizen. If the custody of the child is denied to her, she may
not be able to pursue her career in Australia and that may
not be conducive either to the development of her career or
to the future prospects of the child. Separating the child
from his mother will be disastrous to both.

105. In the case on hand, the child has expressed his reluctance to

interact with the father. Decisions rendered in Athar Hussain’s case and

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Gaytri Bajaj’s case are applicable to the facts on hand.

106. Giving due consideration to the facts of each case, relied on

by both parties before us, we are of the view that the decisions cited,

are in favour of the appellant-mother and thus, applied.

107. Keeping in mind the paramount welfare of the child and

giving due consideration to the entire material on record, this Court is of

the view that the Family Court, has erred in allowing the

I.A.No.3648/2011 in O.P.No.3499/2009 by directing change in custody of

the minor boy without any material change in the circumstances, which

is against the welfare of the child. Family Court has failed to appreciate

the minor’s express wishes, his best interest and welfare, while reversing

custody.

108. Evaluation proves that the minor boy is happy and

comfortable in his present surroundings viz, with the appellant/mother.

Therefore, any alteration of custody would be detrimental to the interest

of the minor boy. Family Court ought to have seen that the mother has

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been bringing up the minor boy by providing him good education,

involvement in sports and other activities, for the all round development

of the boy. In such circumstances, as rightly contended, abrupt change of

custody would upset the proper growth of the minor.

109. Family Court has failed to take note of the minor boy’s

disinclination and reluctance to even meet and interact with the

respondent (father) and in such circumstances compelling the minor boy

to be in the custody of the father would be against the minor’s interest.

Family Court has not given clear, cogent or convincing reasons for

ordering change in custody of the minor boy, except on a premise that

minor son’s interest would be better served in the custody of father.

110. Family Court ought to have seen that the Hon’ble Supreme

Court and this Hon’ble Court, have clearly and consistently held that it is

the welfare of the minor child which is of paramount importance in

granting custody or in changing the custody already granted. Family

Court ought to have appreciated the fact that a boy of nearly 12 years

who has all along been living with the mother, cannot be forced to live

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with his biological father, against his wishes. Such an arrangement would

go against the interest of the minor.

111. One of the reasons assigned in the affidavit, filed in support

of the petition in I.A.No.2779 of 2010, in FCOP No.3495/09, is that the

appellant has remarried and that it would not be conducive to the

growth of the child. In the light of the decisions of the Hon’ble Supreme

Court referred to by the Learned Senior Counsel for the appellant,

remarriage is not a bar, for the custody of the child. Besides on the facts

and circumstances of this case, both the children were grown up. One

was in Australia, and the other outside Madras. Family Court ought to

have seen that appellant’s remarriage has not affected or impaired the

minor’s life or studies or comfort in any manner. On the other hand

evidence on record show, the minor is comfortable with the non-

biological father. In such circumstances ordering change of custody is

unwarranted.

112. Presumption of the Family Court that a boy will be

comfortable with his father in adolescent age does not have any basis

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and such generalised conclusion is unwarranted and not supported by any

evidence. Family Court ought to have seen that excepting for two months

i.e, just after his birth in April 2004 (when he was an infant) the minor

boy had never lived with the respondent/father. Family Court ought to

have seen that the minor boy has been in the care not only of the

appellant but also of her family members viz., mother, brother and his

family, who have brought up the child from his birth with mutual love

and affection. Sudden removal of the child from the present custody

would be disadvantageous for the growth of the boy. Exs.R1 to R5 would

support the conclusion.

113. From the above material, there is no concrete reason to

consider the appellant, as ineligible for the custody of the child. Having

obtained the custody of the child, through an order, dated 10.11.2009 in

F.C.O.P.No.3499/2009, the appellant has not neglected the interest of

the minor child, nor the minor child has been unhappy. Minor child has

expressed a strong bonding with the mother. Aberration in the visitation

rights, has not affected the child. Interest of the minor child would be

best served, if the custody is with the mother.

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114. For the foregoing reasons, impugned order is set aside. The

Civil Miscellaneous Appeal is allowed. No costs.

(S.M.K., J.) (M.V., J.)
29.04.2019
Index: Yes/No
Internet: Yes/No

skm

To

The IIIrd Additional Family Court,
Chennai.

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S. MANIKUMAR, J.

AND
M.VENUGOPAL, J.

skm

C.M.A.No.2249 of 2015

29.04.2019

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