Custody to Father - Judgement

01-KLC-35 (Before K.S.Radhakrishnan & A.Lekshmikutty, JJ)
Monday, the 24th day of September 2001 / 2nd Ashvina, 1923
O.P.NO. 20099 OF 2001 S
Sangeetha : Petitioner
Vs.
The Commissioner of Police, Kochi : Respondents & ors.
This Original petition having been finally heard on 23.8.2001, along with M.F.A.744/98 the Court on 24.9.2001 delivered the following:
M.F.A.NO. 744 OF 1998 C
(Before K.S.Radhakrishnan & G.Sasidharan, JJ)
Monday, the 19th day of March 2001 / 28th Phalguna, 1923
(Against the order in O.P.203/96 on the file of the Family court, Trivandrum)
Suresh Kumar : Appellant
Vs.
Sangeetha : Respondents
This court is witnessing burgeoning of a child custody litigation in the recent past. Mother highlights the paternal deficiencies and the father vice-versa and when they get custody, each tries to denigrate the other parent. The children often get influenced by the indoctrinations of the parent in custody as against the vilified parent. In child custody cases, the result is most often a pyrrhic victory in which both sides lose, even though one may ostensibly the winner. Victory for whom?. It is often at the costs and life of the children. The parents are often unconcerned with the trauma and the psychological impact on the children.(Paragraph No.1)
We may indicate when a petition for divorce on mutual consent is filed needless to say parties will have to ascertain the wishes of the children also and to decide to whom custody of the children be given considering their best interest.(Paragraph No.16)
Referred to : AIR 1948 Madras 294
1960 KLT 812
AIR 1987 SC 1026
2001 (5) SCC 247
In an application seeking a writ of habeas corpus for custody of minor children, the principal consideration for the court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of someone else. As held by the apex court the principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration for the court. (Paragraph No.20)
It is well settled proposition of law that custody of children by their very nature is not final but are interlocutory in nature subject to modification upon change of circumstances requiring change of custody and such change of custody must be proved to be in the best interest of the children.(Paragraph No.21)
Relied on : 1973 (1) SCC 840
2000 (6) SCC 594
2001 AK (SCW) 1033
Courts have reiterated that paramount consideration is the welfare of the children and court has got the power to change their custody in the best interest of the children and taking into consideration of various attendant circumstances. We are aware, as far as writ of habeas corpus is concerned, we are not adjudicating the question as to who should be the legal guardian of the children.
In writ of habeas corpus neither the provisions of the Guardian and Wards Act nor the provisions of the Hindu Marriage Act would stand in the way; nor a decree passed under Section 13 B of the Hindu Marriage Act. In writ of habeas corpus the question is whether fourth respondent is illegally detaining the children and as to whether he is detaining the children against their wish. (Paragraph No.21)
We may also hasten to add that there is no evidence in this case to establish that fourth respondent had in any way abducted the children from the maternal home or that he is retaining the children against their wishes or by force. We are of the view that the children are with the father on their own volition and it cannot be said that their continued stay with the fourth respondent is unlawful or illegal. We cannot visualize a situation where father should forcibly send out his children out of his house when the children voluntarily and with open mind and consciously stay with him or forcefully remove the children with police aid. In a child custody litigation especially when parties are at logger-heads there is a tendency on either side to highlight each others’ deficiency and allege that the other side will try to brainwash the children so as to denigrate the other party. The tender aged children would not be able to make a best judgment at times when the children are influenced by the indoctrinations of the parent in custody. Sometimes parents and relations on either side join the respective sides so as to intensify the situation. They often complicate the welfare and best interest of the children and the dispute attains a power struggle between two groups. (Paragraph No.22)
Child custody cases are always a mind boggling issue. Parties on either side wish the children to be in their custody and denigrate the children as against the parent which at times influence the children to speak of alienated patent with profanity.
We have indicated that we are in this case concerned only with the welfare of the children as well as the question whether the children are in the illegal or unlawful custody of the fourth respondent. (Paragraph No.23)
This W.A having been finally heard on 19.3.2001, along with O.P.20099/01 the Court on the same day delivered the following:
JUDGMENT (Full Text)
Radhakrishnan.J.
1. This court is witnessing burgeoning of a child custody litigation in the recent past. Mother highlights the paternal deficiencies and the father vice-versa and when they get custody, each tries to denigrate the other parent. The children often get influenced by the indoctrinations of the parent in custody as against the vilified parent. In child custody cases, the result is most often a pyrrhic victory in which both sides lose, even though one may ostensibly the winner. Victory for whom?. It is often at the costs and life of the children. The parents are often unconcerned with the trauma and the psychological impact on the children.
1A. Petition for Habeas Corpus is also being filed seeking custody of the children. O.P.No. 20099 of 2001 is filed for the issue of a writ of habeas corpus by the mother of the children and for a direction to secure liberty of her children, Ananthu and Abhimanyu from the father and grandfather and restore their custody to her.
2. Habeas Corpus petition was filed placing reliance on the compromise decree passed by this court in M.F.A.No.744 of 1998 on 19.3.2001 on a joint petition filed by the father and mother by which custody of the children was given to the petitioner. C.M.P.No. 6762 of 2001 in M.F.A.No. 744 of 1998 was filed by the fourth respondent in O.P.No. 20099 of 2001 to vary condition No.2 in the petition filed under Section 13B in the interest of justice and in paramount consideration of the welfare of the children and to give legal guardianship and custody of the minor children to the father.
3. Before we deal with the reliefs sought for in the above petitions, we have to examine the factual background in which these petitions have been filed. We will refer to the parties according to their status in the Habeas Corpus petition. Petitioner and fourth respondent got married on 1.9.1985. Two children by name Ananthu and Abhimanyu were born to them. Ananthu is now aged 14 and Abhimanyu 10. Second son Abhimanyu had a conjunctive cataract in his left eye and a surgery was performed when he was six months old at Aravind Eye Hospital, Madurai. Children were all along staying with the parents till 1995. Disputes then cropped up between the petitioner and fourth respondent. Petitioner stayed away from the fourth respondent from January 1995 onwards, but the children continued to be in the custody of the father. Father was looking after the welfare of the children all along. In other words, children were with the father except for a short while.
4. Fourth respondent in the year 1998 filed O.P.No. 224 of 1998 before the Family Court, Thiruvananthapuram praying for divorce on the ground of mental cruelty and harassment. Petitioner entered appearance before the Family court, but no counter-affidavit was filed. Ultimately an ex-parte decree of divorce was passed on 31.1.2000. Fourth respondent then re-married on 16.4.2000. The ex-parte decree was however set aside the instance of the petitioner.
5. Petitioner and fourth respondent had earlier filed a petition under Section 13B of the Hindu Marriage Act before the Family Court, Thiruvananthapuram as O.P.No. 203 of 1996. Petitioner however withdrew her consent to the joint petition dated 22.3.1996 and the same was therefore dismissed on 17.3.1998. Against the order of the Family court, fourth respondent filed M.F.A.No. 744 of 1998 on 19.5.1998 seeking divorce on the ground that the marriage between the parties had irretrievably been broken down. When the appeal came up for hearing, learned counsel for the petitioner and the fourth respondent pointed out that a joint petition was filed by the parties under Section 13B of the Hindu Marriage Act before the Family Court and that there was no justification in withdrawing the consent by the petitioner. It was pointed out that the parties had then agreed for a divorce on certain terms and conditions and they wanted to incorporate the terms and conditions and to pass decree of divorce in the appeal. This court disposed of the appeal on 19.3.2001 incorporating the following terms and conditions agreed upon by the parties.
1. The marriage between the petitioners dated 1.9.1985 be dissolved by a decree of dissolution of marriage on mutual consent.
2. The two male children born of the wedlock, shall be in the legal guardianship of petitioner No.2. Petitioner No.1 shall give custody of the children on or before 15.4.2001.
3. Petitioner No.1 shall have right to visit the children on the 2nd Saturday of every month. He may take the children to his residence at 10.00 a.m. on such second Saturday at his expense, and re-entrust them to petitioner No.2 before 6.00 p.m. the next day.
4. Petitioner No.1 shall pay an amount of Rs.2,000/- per month to petitioner No.2 as maintenance till she get remarried.
5. Petitioner No. 1 shall pay an amount of Rs.3,000/- per month (Rs.1,500/- for each son) to petitioner No.2 for maintenance of the two children.
6. As pointed out above, as per the terms and conditions custody of the children was to be given to the petitioner on or before 15.4.2001. On 9.4.2001 fourth respondent filed petition C.M.P.No. 3152 of 2001 stating that after passing the decree children were appraised of the court order regarding custody. However, they wanted to be in the custody of the father and it would be in the welfare of the children that the present arrangement should continue. It is pointed out it is out of love and affection and due to their request that fourth respondent was moving the petition. Fourth respondent wanted to ascertain the wish of the children before they were handed over to the petitioner. On the request made by the fourth respondent father, we had discussion with the children and we found no reason to modify condition No.2 agreed to by the parties. Consequently the petition was dismissed on 10.4.2001. Fourth respondent then filed C.M.P.No. 3690 of 2001 on 17.4.2001. It was averred in the said petition that the petitioner is suffering from histrionic personality disorder and therefore would not be in a position to look after the welfare of the children. He reiterated that children were adamant that they should continue to be with their father. He therefore made a request to delete condition No.2. It was also pointed out that he had agreed to condition No.2, due to suppression of material facts. He also wanted to enlarge the time fixed in condition No.2 for handing over the custody of the children to the petitioner. Meanwhile petitioner also filed C.M.P.No. 3673 of 2001 on 18.4.2001 for a direction to the fourth respondent to produce the children before court for handing over them to her in the presence of court.
7. This court disposed of the petition holding that the parties are bound by the decree and that if parties are not complying with the court order, court would be compelled to take contempt of court proceedings. Petitioner also filed C.M.P.No. 4156 of 2001 for a direction to the fourth respondent to hand over custody of the children to her forthwith. On 7.6.2001 parties were present and the children were handed over to the petitioner and the same was recorded by the court on the same date. C.M.P.No. 3690 of 2001 filed by the fourth respondent seeking enlargement of time limit fixed was also dismissed on 7.6.2001. Fourth respondent later filed C.M.P.No. 5307 of 2001 on 22.6.2001 seeking a direction to alter the judgment and decree passed in the appeal with regard to the custody of the children after ascertaining their wishes. It was pointed out in the affidavit filed in support of the petition that the children were not prepared to go with the petitioner on 10.4.2001 and they were called into the chambers of one of us (Radhakrishnan, J.). In the affidavit it is stated as follows:
A modification to condition No.2 of the above order was sought by the petitioner on the ground of reluctance of the children to be with the respondent, which was dismissed by this Hon. Court, after examining the children, on 10.4.2001.
On 10.4.2001, while waiting for being called into the chamber of Hon. Judges, the petitioner herein had seen the respondent hugging and persuading the children not to speak against her. While so the children were called into the chamber, followed by the petitioner and the respondent after a short time, wherein, the respondent resorted to profuse weeping and emotional outbreaks. Emerging out of the chamber, the respondent herein came over to the petitioner and was laughing deliriously.Later it was understood from the children that the respondent herein had effectively threatened to commit suicide by cutting her own wrists in the court premises itself, in the event of the children expressing their reluctance to go along with her. The children further elaborated their traumatic experiences and violent, physical ill treatment meted out to them by the respondent herein during such occasions of their short stay.
Enquiry into the antecedents of the respondent based on the facts revealed by the children and of the petitioner’s own impressions revealed that the respondent herein has a psychological illness called Histrionic Personality Disorder bordering on psychosis (Extreme Extroversion), an irreversible condition rendering her incapable of discharging parental responsibilities.
Along with the petition he has also produced extract of the transcription of the recorded conversation on 12.4.2001 with Dr.Krishna Prasad Sridhar and Dr.Janaki. The petition came up for hearing on 22.6.2001 and the same was dismissed on the same day.
8. After getting custody of the children on 7.6.2001 by the petitioner, children were admitted to Assissi Vidyanikethan Public School, Kakkanad on 25.6.2001. On 6.7.2001 petitioner herein filed the present Habeas Corpus petition stating that the children were illegally taken by the fourth respondent and to ensure their presence before court and handing over custody of the children to her. It is stated in the petition that even though the children went to school on 2.7.2001 they did not return from the school by 5 p.m. In the Habeas Corpus petition fourth respondent and his father were also heard. It was stated that respondents 4 and 5 might have tutored the children. When the petition came up for admission on 6.7.2001, this court issued notice by special messenger and on the allegation made by the petitioner, direction was issued to the fourth respondent to produce the children on 9.7.2001 at 1.45 p.m. Since the children were not produced on 9.7.2001 the case was adjourned to 12.7.2001. This court was informed by the learned Government Pleader that Crime No. 501 of 2001 was registered by the Central Police Station on 3.7.2001 on the basis of the complaint filed by the petitioner alleging that her two children are missing from the school. Learned Government Pleader submitted that the enquiry revealed that the children were in the house of the fourth respondent on 4.7.2001 and they were reluctant to go with the mother. Since the order of the court was not carried out the S.I of Police was placed under suspension and the matter was entrusted to Circle Inspector of Police, Harbour Police Station who took up the investigation on 6.7.2001. In the meantime police also received telegram messages from the fourth respondent stating that he is proposing to file petitions before the Supreme court against the order of this court dated 22.6.2001 and also against the order of the court directing to give custody of the children to the mother. Since children were not produced as directed by this court, this court issued warrant of arrest on 20.7.2001. Fourth respondent, as we have already indicated, filed S.L.P.(Civil) No. 11586 of 2001 against the order of this court in C.M.P.No. 5307 of 2001 in M.F.A. No. 744 of 1998 and also Special Leave to Appeal No. 11587 of 2001 against the order dated 6.7.2001 in O.P.No. 20099 of 2001 directing production of the children on 9.7.2001 which were dismissed by the Supreme Court on 18.7.2001.
9. The fourth respondent then appeared before this court with the children on 20.7.2001 and this court released fourth respondent on executing personal bond undertaking that he would appear and produce the children as and when required. We had a discussion at out chambers with the children on 20.7.2001 and the children expressed their desire to be with their father and stated they were not illegally detained by the father. Since we thought a detailed examination of the issue was necessary, as an interim arrangement we allowed the children to be with the father and also gave direction to the father to make arrangements for continuance of their studies since the children were not going to the school. Fourth respondent submitted that he was not illegally detaining the children, but the children on their own volition left the petitioner to Pandalam and they telephoned the fourth respondent from the residence of his friend at Pandalam. They expressed their desire to be with their father. In such circumstances, children happened to be with him at Trivandrum and wanted to file detailed counter affidavit in the petition. Consequently the matter was adjourned.
10. A detailed counter affidavit has been filed on behalf of the fourth respondent, wherein he has stated as follows:
The O.P.No. 19404/2001 (Habeas Corpus) was taken up at 1.45 PM on 2.7.2001 and the Honourable Bench indicated that orders would be passed on the OP. At around past 7.00 PM this respondent and his advocate were at Room No.2, YMCA Guest House when, Sri.Nirmalan, CI of Police, Central Police Station, Ernakulam came over to the room and informed that the children Ananthu and Abhimanyu were missing. This respondent enquired whether the children had gone to school that day and whether the school authorities had been contacted. This respondent was told that this had not been done yet. This respondent informed the Circle Inspector about the e-mail messages that had been received from the children, about the Habeas Corpus Petition pending before the Hon. High Court and also the possibility of the children having fled from their mother. This respondent also told the C.I that the children could be on their way to his residence at Trivandrum, since the elder boy Ananthu had on his own fled from his mother on an earlier occasion and accordingly this respondent left to Trivandrum.
When this respondent arrived at Trivandrum, he found that his children had not reached his residence. In the morning, on 3.7.2001, the respondent received information from his friend Radhakrishnan, Pandalam that the children had reached Radhakrishnan’s residence at Pandalam at around 7.30 PM the previous night. The respondent immediately left for Pandalam by car KL 01-J-5814. This respondent arrived at Shri.Radhkrishnan’s residence past noon, met the children, and took them to Trivandrum. The respondent produced the children before the Chief Judicial Magistrate, Trivandrum at his residence around 6.00 PM on 3.7.2001. In the petition/request presented to the Chief Judicial Magistrate, Trivandrum, while producing the children, this respondent informed that the children had, on their own escaped from their mother’s custody to escape from her physical and mental ill-treatment. The respondent pleaded that the children’s wishes and the background to their escape may kindly be ascertained and that their interim-custody may be entrusted to the respondent.
Fourth respondent has filed O.P.No. 19404 of 2001 for a writ of habeas corpus as against the petitioner herein for production of the minor children based on three e-mail messages received by him from the children. In those messages children had indicated that they did not want to stay with their mother. The petition came up for hearing on 2.7.2001 and the same was dismissed on 4.7.2001.
11. Fourth respondent took the children with him from the residence of Radhakrishnan where they spent the night. Later he sent a communication to the Commissioner of Police, Cochin City informing that the children had on their own traveled from Ernakulam to Pandalam to escape from the continuing physical torture and abuse of the mother and that the children are with him at his residence. On 4.7.2001 Sub Inspector of Police accompanied by a constable came over to the residence of fourth respondent and recorded statements from the two children wherein the children had stated about the physical torture meted out to them during their stay with the petitioner and also expressed their wish to be with the father. Children had also stated that they had on their own left the school after classes on 2nd July and reached the residence of Radhakrishnan at Pandalam day before. Children described the circumstances which forced them to flee from mother’s custody. Children expressed their reluctance to go with the police and with the mother. Children expressed their reluctance to be produced before any court in Ernakulam since they believed that they would be forcibly handed over to the mother. Under such circumstances, fourth respondent contacted his advocate at New Delhi who advised him to take the children to Delhi so as to move the Hon’ble Supreme Court.
12. The fourth respondent in the counter affidavit stated that he had not snatched away the children from the custody of the petitioner nor had he colluded or sought the help of the fifth respondent for the custody of the children. According to him, children on their own volition escaped from the maternal home and had come to the care and custody of the father. He reiterated that he has no objection in children being handed over to the mother if the children so wish. It was pointed out that two minor children have been staying with him from their infancy except from 7.6.2001 to 2.7.2001 when physical custody was given to the mother on the basis of the joint decree. Even after the mother left the fourth respondent in 1995, he was taking care of the welfare of the children. He was looking after their education all these years. The younger child Abhimanyu aged 10 years had conjunctive cataract in his left eye and had undergone a surgery when he was six months old at Aravind Eye Hospital, Madurai and he is under the legal supervision of Dr. Kannan at Trivandrum. He further stated that he had taken Abhimanyu to Aravind Eye hospital for follow up and for prolonged treatment for Ambliopia a condition caused by the removal of the cataract on his left eye. Even after the guardianship of the children was transferred to their mother and when Abhimanyu was with him, he had personally taken this child to Madurai for follow up on his ambliopia treatment. He used to meet all educational expenses and attend every one of the P.T.A meetings. According to him, he has no objection in handing over the custody of the children to the petitioner if they so wish and if it is in the best interest of the children.
13. Reply affidavit has been filed by the petitioner on 8.8.2001 in which she has highlighted the various methods adopted by the fourth respondent to violate the terms of the decree and also the efforts made by him to take custody of the children violating condition No.2 of the compromise entered into between the parties. According to her, after giving custody of the children to her, she has been looking after the children to the best of her ability. Children were admitted to Assissi Vidyanikethan Public School on 25.6.2001 with much difficulty and from there to St.Thomas Central School, Trivandrum. It is stated that fourth respondent abducted the children from the school on 2.7.2001 and fourth respondent had taken care to keep them away from YMCA Guest House. The allegation that the children had left her on their on volition was denied. It is stated that the various averments made in the counter affidavit are not true version of the children. Children did not have the necessary funds to make the trip from Ernakulam to Tripunithura by auto and from there to Kottayam by bus, from Kottayam to Pandalam by bus and by auto to the house of Radhakrishnan. It is also stated that the view expressed by the children on 20.7.2001 is not the correct expression of their state of minds and were programmed to speak against her. It is also stated that the children were happy with her. Fourth respondent had attempted to instill fear in the mind of the children if they speak against him. Above are the respective cases put up by either side.
14. When the matter came up for hearing we heard counsel for the petitioner Sri.P.B.Krishnan as well as counsel for fourth respondent Sri.R.Anil.
15. We have to give paramount importance to the welfare of the children. Elder child is only aged 14 years and younger 10. This court had occasion to talk to the children on various occasions. Bench consisting of one of us (Radhakrishnan,J.) had occasion to talk to the children before handing over the custody of the children to the mother on 15.4.2001. Since it was a joint decree passed under Section 13B of the Hindu Marriage Act we have to take it that the parents had discussion with the children and ascertained their wish also before filing the joint petition for divorce. The fact that fourth respondent had re-married after obtaining the ex-parte decree on 19.3.2001 and that the petitioner was living separately from 1995 onwards and not re-married, might have prompted the parties to give custody of the children to the petitioner-mother.
16. We may indicate when a petition for divorce on mutual consent is filed needless to say parties will have to ascertain the wishes of the children also and to decide to whom custody of the children be given considering their best interest. Before the custody was given to the petitioner on 15.4.2001 petition was filed by the fourth respondent on 9.4.2001 stating that after passing the decree, children were appraised of the court order regarding custody and they took the stand that they wanted to be in the custody of the father in spite of the decree. Further it was stated that the children expressed their opinion to continue their education in the present school and any change of school would disrupt their studies. The stand of the fourth respondent is that it is out of their love and affection and at their request he had filed petition before this court, C.M.P.No. 3152 of 2001 for modification of condition No.2 in the compromise decree. This court then before handing over custody of the children, summoned the parties and this court talked to the children in the chambers of one of us (Radhakrishnan, J.) on 10.4.2001. Children did not oppose condition No.2 of the compromise decree. In the affidavit filed along with petition No. 5307 of 2001 on 22.6.2001 and C.M.P.No. 3690 of 2001, fourth respondent has explained the circumstances under which children could not explain their genuine desire to court. It is stated that on 10.4.2001 while they were waiting at the court premises, fourth respondent had seen the petitioner hugging and persuading the children not to speak against her. The version of the fourth respondent was that children had told him that the petitioner threatened to commit suicide by cutting her own wrists if they do not go with her. It is under the above-mentioned circumstances the children could not express the genuine desire to the court. The fourth respondent stated that children had also elaborated their traumatic experiences and violent, physical ill-treatment meted out to them by the petitioner when they were with her.
17. We may indicate on 20.7.2001 children appeared before us and we had a very detailed discussion with them. Children expressed their desire to be with their father and reiterated they are not in illegal confinement. This bench again met the children in chambers on 17.8.2001 and they again reiterated their desire to be with the father. According to them, it is in their best interest that they continue with their father. They submitted they left the maternal home on their own volition and not due to any pressure or influence of fourth respondent. On both the occasion when children met us on 20.7.2001 as well as on 17.8.2001 we impressed upon the children that it was on the basis of the joint decree that they were put in the custody of the mother. We also reminded since father had agreed to give custody of the children to the mother they are ordered to be with the mother. We also pointed out the necessity of obeying the decree since it was passed on a compromise petition filed by their parents. We could however gather from the attitude of the children that they very much wanted to be with the father and they are not in illegal confinement.
18. We may narrate in brief the manner in which they left the school on 2.7.2001. They went to Tripunithura, from there to Kottayam and then to Pandalam to the house of one of their father’s friend. It was he who telephoned the father and explained the plight of the children and their desire to be with the father. It was under such circumstances the fourth respondent took the children to Trivandrum. Children submitted that they are staying at Trivandrum on their own volition. It is in their interest that they should be with the father. When we asked the children as to why they had not expressed their reluctance to go with the mother when they met us on 10.4.2001 in chambers they reiterated the reasons which we find in the counter affidavit filed by the father in C.M.P.Nos. 3690 and 5307 of 2001. We may indicate the marriage tie between the petitioner and fourth respondent has already been broken down. Fourth respondent has already obtained decree of divorce and re-married. Petitioner is living separately from the children as well as from the fourth respondent from 1995 onwards. Apart from the short period from 7.6.2001 to 2.7.2001 children were in the custody of the fourth respondent all along. That might have, as we have indicated, developed a psychological bond with the father which may have prompted them to go back to the father.
19. Counsel appearing for the petitioner placing reliance on the decision of a Full Bench of this court in Marggarate Maria v. Dr.Chacko (1969 KLT 174) as well as the Bench decision of this court in F.Youseff V. M.Laila (1993 (1) KLJ 263) submitted that since the petitioner is in legal custody of the children on the basis of the terms of the compromise decree passed by this court in M.F.A.No. 744 of 1998, fourth respondent has no legal right to retain the children with him. Counsel submitted that wishes of the children have also been ascertained by this court on 10.7.2001 and that father and mother had already felt that it is in the best interest of the children that they be with the father. Consequently custody of the children with the fourth respondent is illegal and therefore the court should issue a writ of habeas corpus to hand over the custody of the children to the petitioner. It is also his case that the children were taken from the custody of the mother without her consent since she is in legal custody of the children on the basis of the court decree. Petitioner submitted that it is the duty of the court to ensure that the wrong doer does not gain advantage by a wrong doing. Counsel submitted that condition No.2 that is with regard to the custody of the children is part and parcel of the terms and conditions upon which divorce was granted by this court and consequently any violation of such condition by the fourth respondent would be illegal. Counsel also placed reliance on the decision of the Madras High Court in S.Rama Iyer V. K.V.Nataraja Iyer (AIR 1948 Madras 294), decision of a learned single judge of this court in Abubaker V. Sauda Beevi (1960 KLT 812) and the decision of the apex court in Capt. Dushyant Somal V. Smt.Sushama Somal (AIR 1981 S.C. 1026) and submitted that it is the best interest of the children that they be with the mother since their wish was already ascertained by the parents before they filed Section 13B petition as well as by this court before custody was given as per the court decree. It is his contention that there is no necessity further to ascertain wish of the children since there is likelihood of programming the children. Counsel appearing for fourth respondent Sri.R.Anil reiterated that fourth respondent has not retained the children unlawfully and that they are staying with the fourth respondent on their own volition. He reiterated that the fourth respondent has no objection in giving custody of the children to the mother if the children are agreeable to such a course.
20. We may point out that various decisions cited herein before as well as the decision of the apex court in Syed Saleemuddin V. Dr.Rukhsana and others (2001 (5) SCC 247) have held that in an application seeking a writ of habeas corpus for custody of minor children, the principal consideration for the court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of someone else. As held by the apex court the principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration for the court. We are aware that the petitioner is armed with a court decree and that as per the court decree mother is the legal guardian. We are also aware of the various steps taken by the fourth respondent by filing petitions after petitions to modify the condition No.2 for ascertaining the wish of the children and this court dismissed all those petitions. We are also aware that against the decision in CMP.No. 6507 of 2001 as well as the order passed on 6.7.2001 and 20.7.2001 Special Leave Petitions have been filed before the Supreme Court and those petitions were dismissed. All the same in a writ of habeas corpus we have to consider whether the children are in the illegal and unlawful custody of fourth respondent and that he is retaining the children against the wishes of the children and whether welfare of the children requires that the present custody be changed.
21. It is well settled proposition of law that custody of children by their very nature is not final but are interlocutory in nature subject to modification upon change of circumstances requiring change of custody and such change of custody must be proved to be in the best interest of the children. Reliance may be placed on the decisions, Rosy Jacob V. Jacob A.Chakramakkal (1973 (1) SCC 840), Jai Prakash Khadria V. Shyam Sunder Agarwalla and another (2000 (6) SCC 598) and R.V.Srinath Prasad V. Nandamuri Jayakrishna and others (2001 AIR (SCW) 1033). Some of the cases are coming under the Guardian and Wards Act. Courts have reiterated that paramount consideration is the welfare of the children and court has got the power to change their custody in the best interest of the children and taking into consideration of various attendant circumstances. We are aware, as far as writ of habeas corpus is concerned, we are not adjudicating the question as to who should be the legal guardian of the children. Between the parties thee is a valid binding judgment in M.F.A.No. 744 of 1998 and by which legal custody was given to petitioner on the basis of the compromise decree. Therefore as per law the petitioner is the legal guardian of the children. In writ of habeas corpus neither the provisions of the Guardian and Wards Act nor the provisions of the Hindu Marriage Act would stand in the way; nor a decree passed under Section 13 B of the Hindu Marriage Act. In writ of habeas corpus the question is whether fourth respondent is illegally detaining the children and as to whether he is detaining the children against their wish. We have already indicated children have narrated before us that they were with the father from the infancy and that he used to look after their welfare and education. Barring a few days from 7.6.2001 to 2.7.2001 all along they were with their father. Probably a psychological bond with the father might have prompted them to escape from the school on 2.7.2001. We notice from the affidavit filed by the fourth respondent as well as the story unfold by the children to us that they left the maternal home on their own accord and they reached Pandalam on the night of 2.7.2001. It is the fourth respondent’s friend Radhakrishnan who telephoned fourth respondent and it is at his instance father came to Pandalam and took the children to the house at Trivandrum. Since the children are with the fourth respondent on their own volition and that the children expressed their desire to be with the father and that it is their wish that their interest would be better safeguarded if they are with the father, we are of the view that the children are not in the illegal custody of the fourth respondent.
22. We may also hasten to add that there is no evidence in this case to establish that fourth respondent had in any way abducted the children from the maternal home or that he is retaining the children against their wishes or by force. We are of the view that the children are with the father on their own volition and it cannot be said that their continued stay with the fourth respondent is unlawful or illegal. We cannot visualize a situation where father should forcibly send out his children out of his house when the children voluntarily and with open mind and consciously stay with him or forcefully remove the children with police aid. In a child custody litigation especially when parties are at logger-heads there is a tendency on either side to highlight each others’ deficiency and allege that the other side will try to brainwash the children so as to denigrate the other party. The tender aged children would not be able to make a best judgment at times when the children are influenced by the indoctrinations of the parent in custody. Sometimes parents and relations on either side join the respective sides so as to intensify the situation. They often complicate the welfare and best interest of the children and the dispute attains a power struggle between two groups.
23. Child custody cases are always a mind boggling issue. Parties on either side wish the children to be in their custody and denigrate the children as against the parent which at times influence the children to speak of alienated patent with profanity. In this case each side has tried to character assassinate each other and fourth respondent has even stated that the petitioner is suffering from Histrionic Personality disorder. We are not in this case called upon to decide as to who is at fault and also whether both of them are suffering from any psychological disorders. We have indicated that we are in this case concerned only with the welfare of the children as well as the question whether the children are in the illegal or unlawful custody of the fourth respondent. By talking to the children on two occasions on 20.7.2001 as well as on 17.8.2001 we notice that the children have developed a psychological bond with the father. As far as petitioner is concerned she is living separately from 1995 onwards, but the children continued to be in the custody of fourth respondent. Petitioner was in exclusive custody of the children only for a short period from 7.6.2001 to 2.7.2001. We may indicate after talking to children on more than one occasion at length we feel that there is a strong and healthy psychological bond between the children and the father which led them to leave the maternal home and to go back to the paternal home in spite of the decree. We are of the view this is by their own volition and not due to any compulsion by the fourth respondent. At the moment for disposal of this habeas corpus petition, as held by the apex court, the paramount consideration should be the welfare of the children. In other words, we have to apply best interest of the child doctrine to resolve this issue. We therefore lean in favour of the wishes of the children who are aged 14 and 10 years and hold that they are not in illegal or unlawful custody of the fourth respondent-father but they are living with the fourth respondent on their own volition. Petitioner could not establish any exclusionary tactics adopted by the fourth respondent so as to deprive the mother of the legal custody. We may reiterate that counsel for the fourth respondent has submitted that fourth respondent has no objection whatsoever in the children going back and stay with the mother as and when they desire and he also submitted that the fourth respondent respects the joint decree passed in M.F.A.No. 744 of 1998.
24. In view of the aforementioned circumstances, we are of the view writ of habeas corpus prayed for cannot be granted. We reject the same. In view of the above findings, we find no reason to pass any orders in C.M.P.No. 6762 of 2001 in M.F.A.No. 744 of 1998. All the petitions will stand dismissed.