Child Custody:
In divorce proceedings, the most complex and emotionally drenching issue is that of child custody. Children, young and at times infant have to bear the pain for no fault of theirs. Due to the extreme emotional attachment, both parents want to keep the custody of the children. In Indian set-up, such question is decided by the court of Guardian and Wards. Welfare of the children is the paramount consideration before the Court while deciding the question as to who is entitled to have the custody of children. Custody of children can be divided in to three parts:
1) Permanent Custody: After determining all issues, Court grants permanent custody of children to one of the party.
2) Interim Custody : During the pendancy of the case and otherwise, court can grant interim custody to one of the spouse. It is also possible that Court grants interim custody of children to the other parent at the times of vacations, holidays etc.
3) Visitation Rights: Every parent has inalienable right to meet and see his/her children. Even after winning the case of custody of children by one parent, other parent can not be denied the right to meet and see his/her children. In disposing of such cases, Court awards reasonable visitation right to the other parents and fix up the time and days for the meeting with his/ her children so that the emotional ties are not broken between the child and the other parent.
Tuesday, January 18, 2011
Father is Natural guardians of a Hindu minor
PETITIONER:MS. GITHA HARIHARAN & ANR.
Vs.
RESPONDENT:RESERVE BANK OF INDIA & ANR.
DATE OF JUDGMENT: 17/02/1999
BENCH:Umesh C. Banerjee
JUDGMENT:BANERJEE,J.
Though nobility and self-denial coupled with tolerance mark the greatest features of Indian womanhood in the past and the cry for equality and equal status being at a very low ebb, but with the passage of time and change of social structure the same is however no longer dormant but presently quite loud. This cry is not restrictive to any particular country but world over with variation in degree only. Article 2 of the Universal Declaration of Human Rights [as adopted and proclaimed by the General Assembly in its resolution No.217A(III)] provided that everybody is entitled to all rights and freedom without distinction of
any kind whatsoever such as race, sex or religion and the ratification of the convention for elimination of all forms of discrimination against women (for short CEDAW) by the United Nations Organisation in 1979 and subsequent acceptance and ratification by India in June 1993 also amply demonstrate the same.
2. We the people of this country gave ourselves a written Constitution, the basic structure of which permeates equality of status and thus negates gender bias and it is on this score, the validity of Section
6 of the Hindu Minority and Guardianship Act of 1956 has been challenged in the matters under consideration, on the ground that dignity of women is a right inherent under the Constitution which as a matter of fact stands negatived by Section 6 of the Act of 1956.
3. In order, however, to appreciate the contentions raised, it would be convenient to advert to the factual aspect of the matters at this juncture. The facts in WP c No.489 of 1995 can be stated as below:-
4. The petitioner and Dr. Mohan Ram were married at Bangalore in 1982 and in July 1984, a son named Rishab Bailey was born to them. In December, 1984 the petitioner applied to the Reserve Bank of India for 9% Relief Bond to be held in the name of their minor son Rishab alongwith an intimation that the petitioner No.1 being the mother, would act as the natural guardian for the purposes of investments.
The application however was sent back to the petitioner by the RBI Authority advising her to produce the application signed by the father and in the alternative the Bank informed that a certificate of guardianship from a Competent Authority in her favour, ought to be forwarded to the Bank forthwith so as to enable the Bank to issue Bonds as requested and it is this communication from the RBI authorities, which is stated to be arbitrary and opposed to the basic concept of justice in this petition under Article 32 of the Constitution challenging the validity of section 6 of the Act as indicated above.
5. The factual backdrop in WP c No.1016 of 1991 centres round a prayer for custody of the minor son born through the lawful wedlock between the petitioner and the first respondent. Be it noted that a divorce proceeding is pending in the District Court of Delhi and the first respondent has prayed for custody of their
minor son in the same proceeding. The petitioner in turn, however, also has filed an application for maintenance for herself and the minor son. On further factual score it appears that the first respondent has been repeatedly writing to the petitioner, asserting that he was the only natural guardian of the minor and no decision should be taken without his permission. Incidentally, the minor has been staying with the mother and it has been the definite case of the petitioner in this petition under Article 32 that in spite of best efforts of the petitioner, the father has shown total apathy towards the child and as a matter of fact is not interested in welfare and benefit of the child excepting however claiming the right to be the natural guardian without however discharging any corresponding obligation. It is on these facts that the petitioner moved this Court under Article 32 of the Constitution praying for declaration of the provisions of Section 6(a) of the Act
read with Section 19(b) of the Guardian Co nstitution. and Wards Act as violative of Articles 14 and 15 of the
6.Since,challenge to the constitutionality of Section 6 of the Act is involved in both the matters, the petitions were heard together.
7. Ms. Indira Jaisingh, appearing in support of the petitions strongly contended that the provisions of section 6 of the Act seriously disadvantage woman and discriminate man against woman in the matter of guardianship rights, responsibilities and authority in relation to their own children.
8. It has been contended that on a true and proper interpretation of section 4 and the various provisions
thereunder and having due regard to the legislative intent, which is otherwise explicit, question of putting an embargo for the mother in the matter of exercise of right over the minor as the guardian or ascribing the father as the preferred guardian does not arise, but unfortunately however, the language in section 6 of the Act runs counter to such an equality of rights of the parents to act as guardian to the minor child. 9. For convenience sake however section 6 of the Act of 1956 is set out herein below: “6. Natural guardians of a Hindu minor- The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother : provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;
(c) in the case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation-In this section, the expressions `father’ and `mother’ do not include a step-father and a step-mother.”
10. Be it noted that the Hindu Minority and Guardianship Act of 1956 has been engrafted on the statute
book by way of an amendment and codification of certain parts of the law relating to minority and guardianship among Hindus. It is not out of place to mention also that Hindu law being one of the oldest known system of jurisprudence has shown no signs of decrepitude and it has its values and importance even today. But the law makers however thought it prudent to codify certain parts of the law in order to give a fruitful meaning and statutory sanction to the prevailing concept of law having due regard to the social
and economic changes in the society. It is on this perspective however certain aspects of the law as it stood
prior to the codification ought to be noted. 11. As regards the concept of guardianship both the
parents under the Hindu law were treated as natural guardians, of the persons and the separate property of their minor children, male or female except however that the husband is the natural guardian of his wife howsoever young she might be and the adopted father being the natural guardian of the adopted son. The law however provided that upon the death of the father and in the event of there being no testamentary guardian appointed by the father, the mother succeeds to the natural guardianship of the person and separate property of their minor children. Conceptually, this guardianship however is in the nature of a sacred trust
and the guardian cannot therefore, during his lifetime substitute another person to be the guardian in his place
though however entrustment of the custody of the child for education or purposes allying may be effected temporarily with a power to revoke at the option of the guardian.
12. The codification of this law pertaining to guardianship however brought about certain changes in regard
thereto, of which we will presently refer, but it is interesting to note that prior to the enactment, the law
recognised both de facto and de jure guardian of a minor: A guardian-de- facto implying thereby one who has taken upon himself the guardianship of a minor-whereas the guardian de-jure is a legal guardian who has a legal right to guardianship of a person or the property or both as the case may be. This concept of legal guardian includes a natural guardian: a testamentary guardian or a guardian of a Hindu minor appointed or declared by Court of law under the general law of British India.
13. Incidentally, the law relating to minority and guardianship amongst Hindus is to be found not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised by the Courts of law but also statutes applicable amongst others to Hindus, to wit, Guardian and Wards Act of 1890 and Indian
Majority Act of 1875. Be it further noted that the Act of 1956 does not as a matter of fact in any way run counter to the earlier statutes in the subject but they are supplemental to each other as reflected in Section 2 of the Act of 1956 itself which provides that the Act shall be in addition to and not in derogation of the Acts as noticed above.
14. Before proceeding further, however, on the provisions of the Act in its true perspective, it is convenient to note that lately the Indian Courts following the rule of equality as administered in England have refused
to give effect to inflexible application of paternal right of minor children. In equity, a discretionary power has
been exercised to control the father’s or guardian’s legal rights of custody, where exercise of such right cannot but be termed to be capricious or whimsical in nature or would materially interfere with the happiness and the welfare of the child. In re Mc Grath (1893, 1 Ch.143) Lindley, L.J., observed: “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 considered as well as its physical well being. Nor can the ties of affection be disregarded.” Lord Esher, M.R. in the Gyngall (1893) 2 Q.B.232 stated: “The Court has to
consider therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion , and the happiness of the child. Prima facie it would not be for the welfare of the child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say from its mother’s lap in one form of religion, it would not, I should say be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich,
that, without regard to any other consideration, to the natural rights and feelings of the parent, or the feelings
and views that have been introduced into the heart and mind of the child, the child ought not to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise man would entertain such suggestions as these.” The English law therefore has been consistent with the concept of welfare theory of the child. The Indian law also does not make any departure, therefrom.. In this
context, reference may be made to the decision of this Court in the case of J.V. Gajre vs. Pathankhan and Ors. (1970 (2) SCC 717) in which this Court in paragraph 11 of the report observed:
“We have already referred to the fact that the father and mother of the appellant had fallen out and that the
mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor
appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under section 6 the natural guardians of a Hindu minor in respect of the minor’s person
as well as the minor’s property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.”
15. Obviously, a rigid insistence of strict statutory interpretation may not be conducive for the growth of the
child, and welfare being the predominant criteria, it would be a plain exercise of judicial power of interpreting the law so as to be otherwise conducive to a fuller and better development and gro wth of the child.
16. Incidentally the Constitution of India has introduced an equality code prohibiting discrimination on the ground of sex and having due regard to such a mandate in the Constitution, is it justifiable to decry the rights of the mother to be declared a natural guardian or have the father as a preferred guardian? Ms. Indira Jaisingh answers it with an emphatic `no’ and contended that the statute in question covering this aspect of the Personal law has used the expression `after’ in Section 6 (a) but the same cannot run counter to the constitutional safeguards of gender justice and as such cannot but be termed to be void and ultravires the
Constitution.
17. Be it noted here that the expressions `guardian’ and `natural guardian’ have been given statutory meanings as appears from Section 4(b) wherein guardian is said to mean a person having the care of the person of a minor or his property and includes: (i) natural guardian;
(ii) a guardian appointed by the will of the minor’s father or mother; (iii) a guardian appointed or declared by court, and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards;
18. It is pertinent to note that sub-section (c) of section 4 provides that a natural guardian means a guardian
mentioned in section 6. This definition section, however obviously in accordance with the rule of interpretation of statute, ought to be read subject to Section 6 being one of the basic provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother. The statute therefore on a plain reading with literal meaning being ascribed to the words used, depicts that the mother’s right to act as a natural guardian
stands suspended during the lifetime of the father and it is only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor - It is this interpretation which has been ascribed to be having a gender bias and thus opposed to the constitutional provision. It has been contended that the classification is based on marital status depriving a mother’s guardianship of a child during the life time of the father which also cannot but be stated to be a prohibited marker under Article 15 of
the Constitution.
19. The whole tenor of the Act of 1956 is to protect the welfare of the child and as such interpretation ought to be in consonance with the legislative intent in engrafting the statute on the Statute Book and not de hors the same and it is on this perspective that the word `after’ appearing in section 6A shall have to be interpreted. It is now a settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless of course, the same makes a violent departure from the Legislative intent-in the event of which a wider debate may be had hav ing due reference to the contextual facts..
20.The contextual facts in the decision noticed above, depict that since the father was not taking any interest in the minor and it was as good as if he was non-existing so far as the minor was concerned, the High Court allowed the mother to be the guardian but without expression of any opinion as regards the true and correct interpretation of the word `after’ or deciding the issue as to the constitutionality of the provision as contained in Section 6(a) of the Act of 1956 – it was decided upon the facts of the matter in issue.
The High Court in fact recognised the mother to act as the natural guardian and the findings stand accepted and approved by this Court. Strictly speaking, therefore, this decision does not lend any assistance in the facts of the matter under consideration excepting however that welfare concept had its due recognition.
21. There is yet another decision of this Court in the case of Panni Lal vs Rajinder Singh and Another (1993 (4) SCC 38) wherein the earlier decision in Gajre’s case was noted but in our view Panni Lal’s case does not lend any assistance in the matter in issue and since the decision pertain to protection of the properties of a minor.
22. Turning attention on the principal contention as regards the constitutionality of the legislation, in particular Section 6 of the Act of 1956 it is to be noted that validity of a legislation is to be presumed and efforts should always be there on the part of the law courts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law courts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise and it is on this perspective that we may analyse the expressions used in section 6 in a slightly more greater detail. The word `guardian’ and the meaning attributed to it by the legislature under section 4(b) of the Act cannot be said to be restrictive in any way and thus the same would mean and include both the father and the mother and this is more so by reason of the meaning attributed to the word as “a person having the care of the person of a minor or his property or of both his person and property….” It is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child and thus having due regard to the meaning attributed to the word `guardian’ both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the codification by the Act of 1956. The law therefore recognised that a minor
has to be in the custody of the person who can sub-serve his welfare in the best possible way – the interest of the child being paramount consideration.
23. The expression `natural guardian’ has been defined in Section 4(c) as noticed above to mean any of the guardians as mentioned in section 6 of the Act of 1956. This section refers to three classes of guardians viz., father, mother and in the case of a married girl the husband. The father and mother therefore, are natural guardians in terms of the provisions of Section 6 read with Section 4(c). Incidentally it is to be noted that
in the matter of interpretation of statute the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event, the word `guardian’ in the definition section means and implies both the parents, the same meaning ought to be attributed to the word appearing in section 6(a) and in that perspective mother’s right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tentamount to a violent departure from the legislative intent. Section 6(a) itself recognises that both the father and the mother ought to be treated as natural guardians and the expression `after’ therefore shall have to be read and interpreted in a manner so as not to defeat the true intent of the legislature.
24. Be it noted further, that gender equality is one of the basic principles of our Constitution and in the event the word `after’ is to be read to mean a disqualification of a mother to act as a guardian during the
lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional
mandate and would lead to a differenciation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter the word `after’ shall have to be interpreted in terms of the constitutional safe-guard and guarantee so as to give a proper and effective meaning to
the words used.
25. In our opinion the word `after’ shall have to be given a meaning which would sub-serve the need of the situation viz., welfare of the minor and having due regard to the factum that law courts endeavour to retain the
legislation rather than declaring it to be a void, we do feel it expedient to record that the word `after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as `in the absence of `- be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word `after’ as used in Section 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child.
26.In that view of the matter question of ascribing the literal meaning to the word `after’ in the context does not and cannot arise having due regard to the object of the statute, read with the constitutional guarantee of gender equality and to give a full play to the legislative intent, since any other interpretation would render the statute void and which situation in our view ought to be avoided.
27. In view of the above, the Writ Petition c No.489 of 1995 stands disposed of with a direction that Reserve Bank authorities are directed to formulate appropriate methodology in the light of the observations, as above, so as to meet the situation as called for in the contextual facts.
28.Writ Petition c No.1016 of 1991 also stands disposed of in the light of the observations as recorded above and the matter pending before the District court, Delhi, as regards custody and guardianship of the minor child, shall be decided in accordance therewith.
29. In the facts of the matters under consideration there shall however be no order as to costs.
Vs.
RESPONDENT:RESERVE BANK OF INDIA & ANR.
DATE OF JUDGMENT: 17/02/1999
BENCH:Umesh C. Banerjee
JUDGMENT:BANERJEE,J.
Though nobility and self-denial coupled with tolerance mark the greatest features of Indian womanhood in the past and the cry for equality and equal status being at a very low ebb, but with the passage of time and change of social structure the same is however no longer dormant but presently quite loud. This cry is not restrictive to any particular country but world over with variation in degree only. Article 2 of the Universal Declaration of Human Rights [as adopted and proclaimed by the General Assembly in its resolution No.217A(III)] provided that everybody is entitled to all rights and freedom without distinction of
any kind whatsoever such as race, sex or religion and the ratification of the convention for elimination of all forms of discrimination against women (for short CEDAW) by the United Nations Organisation in 1979 and subsequent acceptance and ratification by India in June 1993 also amply demonstrate the same.
2. We the people of this country gave ourselves a written Constitution, the basic structure of which permeates equality of status and thus negates gender bias and it is on this score, the validity of Section
6 of the Hindu Minority and Guardianship Act of 1956 has been challenged in the matters under consideration, on the ground that dignity of women is a right inherent under the Constitution which as a matter of fact stands negatived by Section 6 of the Act of 1956.
3. In order, however, to appreciate the contentions raised, it would be convenient to advert to the factual aspect of the matters at this juncture. The facts in WP c No.489 of 1995 can be stated as below:-
4. The petitioner and Dr. Mohan Ram were married at Bangalore in 1982 and in July 1984, a son named Rishab Bailey was born to them. In December, 1984 the petitioner applied to the Reserve Bank of India for 9% Relief Bond to be held in the name of their minor son Rishab alongwith an intimation that the petitioner No.1 being the mother, would act as the natural guardian for the purposes of investments.
The application however was sent back to the petitioner by the RBI Authority advising her to produce the application signed by the father and in the alternative the Bank informed that a certificate of guardianship from a Competent Authority in her favour, ought to be forwarded to the Bank forthwith so as to enable the Bank to issue Bonds as requested and it is this communication from the RBI authorities, which is stated to be arbitrary and opposed to the basic concept of justice in this petition under Article 32 of the Constitution challenging the validity of section 6 of the Act as indicated above.
5. The factual backdrop in WP c No.1016 of 1991 centres round a prayer for custody of the minor son born through the lawful wedlock between the petitioner and the first respondent. Be it noted that a divorce proceeding is pending in the District Court of Delhi and the first respondent has prayed for custody of their
minor son in the same proceeding. The petitioner in turn, however, also has filed an application for maintenance for herself and the minor son. On further factual score it appears that the first respondent has been repeatedly writing to the petitioner, asserting that he was the only natural guardian of the minor and no decision should be taken without his permission. Incidentally, the minor has been staying with the mother and it has been the definite case of the petitioner in this petition under Article 32 that in spite of best efforts of the petitioner, the father has shown total apathy towards the child and as a matter of fact is not interested in welfare and benefit of the child excepting however claiming the right to be the natural guardian without however discharging any corresponding obligation. It is on these facts that the petitioner moved this Court under Article 32 of the Constitution praying for declaration of the provisions of Section 6(a) of the Act
read with Section 19(b) of the Guardian Co nstitution. and Wards Act as violative of Articles 14 and 15 of the
6.Since,challenge to the constitutionality of Section 6 of the Act is involved in both the matters, the petitions were heard together.
7. Ms. Indira Jaisingh, appearing in support of the petitions strongly contended that the provisions of section 6 of the Act seriously disadvantage woman and discriminate man against woman in the matter of guardianship rights, responsibilities and authority in relation to their own children.
8. It has been contended that on a true and proper interpretation of section 4 and the various provisions
thereunder and having due regard to the legislative intent, which is otherwise explicit, question of putting an embargo for the mother in the matter of exercise of right over the minor as the guardian or ascribing the father as the preferred guardian does not arise, but unfortunately however, the language in section 6 of the Act runs counter to such an equality of rights of the parents to act as guardian to the minor child. 9. For convenience sake however section 6 of the Act of 1956 is set out herein below: “6. Natural guardians of a Hindu minor- The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother : provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;
(c) in the case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation-In this section, the expressions `father’ and `mother’ do not include a step-father and a step-mother.”
10. Be it noted that the Hindu Minority and Guardianship Act of 1956 has been engrafted on the statute
book by way of an amendment and codification of certain parts of the law relating to minority and guardianship among Hindus. It is not out of place to mention also that Hindu law being one of the oldest known system of jurisprudence has shown no signs of decrepitude and it has its values and importance even today. But the law makers however thought it prudent to codify certain parts of the law in order to give a fruitful meaning and statutory sanction to the prevailing concept of law having due regard to the social
and economic changes in the society. It is on this perspective however certain aspects of the law as it stood
prior to the codification ought to be noted. 11. As regards the concept of guardianship both the
parents under the Hindu law were treated as natural guardians, of the persons and the separate property of their minor children, male or female except however that the husband is the natural guardian of his wife howsoever young she might be and the adopted father being the natural guardian of the adopted son. The law however provided that upon the death of the father and in the event of there being no testamentary guardian appointed by the father, the mother succeeds to the natural guardianship of the person and separate property of their minor children. Conceptually, this guardianship however is in the nature of a sacred trust
and the guardian cannot therefore, during his lifetime substitute another person to be the guardian in his place
though however entrustment of the custody of the child for education or purposes allying may be effected temporarily with a power to revoke at the option of the guardian.
12. The codification of this law pertaining to guardianship however brought about certain changes in regard
thereto, of which we will presently refer, but it is interesting to note that prior to the enactment, the law
recognised both de facto and de jure guardian of a minor: A guardian-de- facto implying thereby one who has taken upon himself the guardianship of a minor-whereas the guardian de-jure is a legal guardian who has a legal right to guardianship of a person or the property or both as the case may be. This concept of legal guardian includes a natural guardian: a testamentary guardian or a guardian of a Hindu minor appointed or declared by Court of law under the general law of British India.
13. Incidentally, the law relating to minority and guardianship amongst Hindus is to be found not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised by the Courts of law but also statutes applicable amongst others to Hindus, to wit, Guardian and Wards Act of 1890 and Indian
Majority Act of 1875. Be it further noted that the Act of 1956 does not as a matter of fact in any way run counter to the earlier statutes in the subject but they are supplemental to each other as reflected in Section 2 of the Act of 1956 itself which provides that the Act shall be in addition to and not in derogation of the Acts as noticed above.
14. Before proceeding further, however, on the provisions of the Act in its true perspective, it is convenient to note that lately the Indian Courts following the rule of equality as administered in England have refused
to give effect to inflexible application of paternal right of minor children. In equity, a discretionary power has
been exercised to control the father’s or guardian’s legal rights of custody, where exercise of such right cannot but be termed to be capricious or whimsical in nature or would materially interfere with the happiness and the welfare of the child. In re Mc Grath (1893, 1 Ch.143) Lindley, L.J., observed: “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 considered as well as its physical well being. Nor can the ties of affection be disregarded.” Lord Esher, M.R. in the Gyngall (1893) 2 Q.B.232 stated: “The Court has to
consider therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion , and the happiness of the child. Prima facie it would not be for the welfare of the child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say from its mother’s lap in one form of religion, it would not, I should say be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich,
that, without regard to any other consideration, to the natural rights and feelings of the parent, or the feelings
and views that have been introduced into the heart and mind of the child, the child ought not to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise man would entertain such suggestions as these.” The English law therefore has been consistent with the concept of welfare theory of the child. The Indian law also does not make any departure, therefrom.. In this
context, reference may be made to the decision of this Court in the case of J.V. Gajre vs. Pathankhan and Ors. (1970 (2) SCC 717) in which this Court in paragraph 11 of the report observed:
“We have already referred to the fact that the father and mother of the appellant had fallen out and that the
mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor
appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under section 6 the natural guardians of a Hindu minor in respect of the minor’s person
as well as the minor’s property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.”
15. Obviously, a rigid insistence of strict statutory interpretation may not be conducive for the growth of the
child, and welfare being the predominant criteria, it would be a plain exercise of judicial power of interpreting the law so as to be otherwise conducive to a fuller and better development and gro wth of the child.
16. Incidentally the Constitution of India has introduced an equality code prohibiting discrimination on the ground of sex and having due regard to such a mandate in the Constitution, is it justifiable to decry the rights of the mother to be declared a natural guardian or have the father as a preferred guardian? Ms. Indira Jaisingh answers it with an emphatic `no’ and contended that the statute in question covering this aspect of the Personal law has used the expression `after’ in Section 6 (a) but the same cannot run counter to the constitutional safeguards of gender justice and as such cannot but be termed to be void and ultravires the
Constitution.
17. Be it noted here that the expressions `guardian’ and `natural guardian’ have been given statutory meanings as appears from Section 4(b) wherein guardian is said to mean a person having the care of the person of a minor or his property and includes: (i) natural guardian;
(ii) a guardian appointed by the will of the minor’s father or mother; (iii) a guardian appointed or declared by court, and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards;
18. It is pertinent to note that sub-section (c) of section 4 provides that a natural guardian means a guardian
mentioned in section 6. This definition section, however obviously in accordance with the rule of interpretation of statute, ought to be read subject to Section 6 being one of the basic provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother. The statute therefore on a plain reading with literal meaning being ascribed to the words used, depicts that the mother’s right to act as a natural guardian
stands suspended during the lifetime of the father and it is only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor - It is this interpretation which has been ascribed to be having a gender bias and thus opposed to the constitutional provision. It has been contended that the classification is based on marital status depriving a mother’s guardianship of a child during the life time of the father which also cannot but be stated to be a prohibited marker under Article 15 of
the Constitution.
19. The whole tenor of the Act of 1956 is to protect the welfare of the child and as such interpretation ought to be in consonance with the legislative intent in engrafting the statute on the Statute Book and not de hors the same and it is on this perspective that the word `after’ appearing in section 6A shall have to be interpreted. It is now a settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless of course, the same makes a violent departure from the Legislative intent-in the event of which a wider debate may be had hav ing due reference to the contextual facts..
20.The contextual facts in the decision noticed above, depict that since the father was not taking any interest in the minor and it was as good as if he was non-existing so far as the minor was concerned, the High Court allowed the mother to be the guardian but without expression of any opinion as regards the true and correct interpretation of the word `after’ or deciding the issue as to the constitutionality of the provision as contained in Section 6(a) of the Act of 1956 – it was decided upon the facts of the matter in issue.
The High Court in fact recognised the mother to act as the natural guardian and the findings stand accepted and approved by this Court. Strictly speaking, therefore, this decision does not lend any assistance in the facts of the matter under consideration excepting however that welfare concept had its due recognition.
21. There is yet another decision of this Court in the case of Panni Lal vs Rajinder Singh and Another (1993 (4) SCC 38) wherein the earlier decision in Gajre’s case was noted but in our view Panni Lal’s case does not lend any assistance in the matter in issue and since the decision pertain to protection of the properties of a minor.
22. Turning attention on the principal contention as regards the constitutionality of the legislation, in particular Section 6 of the Act of 1956 it is to be noted that validity of a legislation is to be presumed and efforts should always be there on the part of the law courts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law courts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise and it is on this perspective that we may analyse the expressions used in section 6 in a slightly more greater detail. The word `guardian’ and the meaning attributed to it by the legislature under section 4(b) of the Act cannot be said to be restrictive in any way and thus the same would mean and include both the father and the mother and this is more so by reason of the meaning attributed to the word as “a person having the care of the person of a minor or his property or of both his person and property….” It is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child and thus having due regard to the meaning attributed to the word `guardian’ both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the codification by the Act of 1956. The law therefore recognised that a minor
has to be in the custody of the person who can sub-serve his welfare in the best possible way – the interest of the child being paramount consideration.
23. The expression `natural guardian’ has been defined in Section 4(c) as noticed above to mean any of the guardians as mentioned in section 6 of the Act of 1956. This section refers to three classes of guardians viz., father, mother and in the case of a married girl the husband. The father and mother therefore, are natural guardians in terms of the provisions of Section 6 read with Section 4(c). Incidentally it is to be noted that
in the matter of interpretation of statute the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event, the word `guardian’ in the definition section means and implies both the parents, the same meaning ought to be attributed to the word appearing in section 6(a) and in that perspective mother’s right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tentamount to a violent departure from the legislative intent. Section 6(a) itself recognises that both the father and the mother ought to be treated as natural guardians and the expression `after’ therefore shall have to be read and interpreted in a manner so as not to defeat the true intent of the legislature.
24. Be it noted further, that gender equality is one of the basic principles of our Constitution and in the event the word `after’ is to be read to mean a disqualification of a mother to act as a guardian during the
lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional
mandate and would lead to a differenciation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter the word `after’ shall have to be interpreted in terms of the constitutional safe-guard and guarantee so as to give a proper and effective meaning to
the words used.
25. In our opinion the word `after’ shall have to be given a meaning which would sub-serve the need of the situation viz., welfare of the minor and having due regard to the factum that law courts endeavour to retain the
legislation rather than declaring it to be a void, we do feel it expedient to record that the word `after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as `in the absence of `- be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word `after’ as used in Section 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child.
26.In that view of the matter question of ascribing the literal meaning to the word `after’ in the context does not and cannot arise having due regard to the object of the statute, read with the constitutional guarantee of gender equality and to give a full play to the legislative intent, since any other interpretation would render the statute void and which situation in our view ought to be avoided.
27. In view of the above, the Writ Petition c No.489 of 1995 stands disposed of with a direction that Reserve Bank authorities are directed to formulate appropriate methodology in the light of the observations, as above, so as to meet the situation as called for in the contextual facts.
28.Writ Petition c No.1016 of 1991 also stands disposed of in the light of the observations as recorded above and the matter pending before the District court, Delhi, as regards custody and guardianship of the minor child, shall be decided in accordance therewith.
29. In the facts of the matters under consideration there shall however be no order as to costs.
How Child Visitation should be determined?
Pramjit Singh Lamba Vs. Smit Prabjot Kaur [2004] INHCD 76 (12 April 2004)
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT:
CRP No.276/2003
Date of Hearing : March 15, 2004.
Date of Decision: April 12, 2004.
Hindu Marriage Act 1955 -Custody of the Minor Child
Paramjit Singh Lamba ...Petitioner
through Mr. J.P. Singh, Advocate
Versus
Smt. Prabjot Kaur ...Respondent
through Mr. K. Sultan Singh
with Mr. Manish Kumar, Advocates
CORAM:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
1. Whether reporters of local papers may be allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
VIKRAMAJIT SEN, J.
1. This Revision brings to the surface an important question which universally affects and afflicts all persons belonging to a broken home, viz. the custody of the minor child of the two warring spouses. It cannot be over-emphasised that the paramount consideration in all such situations is the well-being of the child. It is this aspect which must be kept in focus and the individual `rights' of the parents would recede into the shadows. It is but a human frailty for the Judge to be prejudiced by the reproachable and unbecoming conduct of a particular spouse while determining the manner in which the child's time is to be apportioned. It has been noticed that the Guardian Judge does not follow a uniform practice in this regard in that sometimes the parent who does not have the custody of the child is granted a meeting of a duration of one or two hours in a month, that too in the uncomfortable and uncongenial environment of the Court, while in other cases weekly visitation or access for several hours is ordered. It is trite to state, but necessary to reiterate, that it is the welfare of the child which must be kept in the fore, either while granting custody or visitation to the parent who does not have the custody. It must also be highlighted that orders of this genre are inherently interlocutory in nature, subject to modification from time to time. It is not essential that the Court accepts consent terms presented to it by the parents. The Court is also not powerless to cancel or modify an arrangement approved by it earlier, if change in circumstances so compel.
2. The Statute proclaims the father to be the natural guardian of the child but clarifies that till he/she attains the age of five years, his/her custody would ordinarily be granted to the mother. The Legislature merely recognises the universal experience and observation that the mother is better equipped and inclined in bringing-up the children. Homo sapiens are the most advanced and intelligent species but there is some commonality with other animals amongst whom it is ubiquitously the mother which cares for the offspring upto adolescence. The Hon'ble Supreme Court, however, has clarified in Kumar V. Jahgirdar vs. Chethana Ramatheertha, 2004(1) Scale 149 that it does not subscribe to the observations that a mother is always preferable to the father so far as the custody of the child is concerned. Although the Hon'ble Supreme Court had found that the child had not been brainwashed in the case before it, it was expressly aware of the reality that the child's mind is invariably poisoned against the other parent. Such a practice must be unreservedly deprecated, as it is wholly deleterious to the welfare of the child concerned and to the development of the personality. Every child requires exposure to and influence of both his parents. Visitation in Court precincts should be resorted to where there is no other option, or where the conduct of a parent is deviant or unnatural thereby necessitating jural monitoring.
3. In the present case the Father has for various reasons, which I need not discuss threadbare, not had much interaction with his daughter. It has been explained that he was pursuing studies in the United States of America during the infancy of his daughter. Visitation between 3:00 P.M. to 4:00 P.M. on the last Saturday of the month, in the Court precincts, appears to have been granted on 23.3.2001. The present Additional District Judge has taken an adverse view of the fact that the Father did not assail the previous Order in an Appeal or Revision. In my considered view, however, it would be inappropriate to give a critical weightage to this fact. Assuming that a parent was uncaring at a particular stage in the child's life, he/she should not be shut out for all times to come. As already observed a decision should be taken not from the claim of the parent, but from the standpoint of the child concerned, since there can be no argument against the necessity for the child to spend time with both parents. In the present case the fixation of only one hour in a month has led to the consequence of the child refusing to meet her Father, that is, the Petitioner herein. Such an abhorrence towards the Father cannot but be the result of brainwashing by the Mother, which has succeeded in large measure because of the extremely limited access of the Petitioner with his daughter.
4. So far as the interests of the child are concerned it is imperative that a meaningful exposure to both parents should be ordained by the Court. One hour every month is clearly counter-productive for the achievement of this objective, as this case palpably manifests. The Court should endeavour to make a weekly meeting possible and only insist that this should be in the Court precincts where no other alternative is possible. It is only in rare cases that such a location should be prescribed. The duration of the meeting should be fixed so as to enable a healthy interaction between the parent and child, and should not be reduced to a mere legal formality. There is also no reason why a shorter visitation, say for one hour, should also not be ordered on a week day so that there is constant contact between the child and the parent. This may be onerous or awkward for the parent who has custody, but in a dismembered family, it cannot be avoided. The parents will eventually evolve a system and develop a pragmatic and healthy attitude where their lives continue in the smoothest manner possible even in such adverse and unfortunate circumstances.
5. In the impugned Order the Additional District Judge has understandably noted and has been adversely influenced by the fact that the application for a change in the interim arrangement and for custody of the child had been presented by the Father only on the filing of the Petition under Section 13(1) (ia) of the Hindu Marriage Act. This is also a reality, but the bluff of the parent filing such an application can be countered by allowing access/visitation rights to the child which the uninterested parent would eventually not fully avail of. In such a case the parent would run the danger not only of alienating the child forever, but also creating an occasion for modification in the duration of child access.
6. I would allow the present Revision by increasing the access of the Father to one hour every week, in the first instance. Since it is evident that the daughter is presently inimical towards meeting her Father, it is expected of the Respondent that she should create a congenial atmosphere which would obviate the meeting/visitation to be held in the Court of the Matrimonial/ Guardian Judge. If avoidable bickering does not end, the parents would end up wasting the better part of their lives in Court, and this should soon bring them to their senses. Their folly, however, is no justification for not endeavouring to achieve the best for the unfortunate child, who has no role or say in the spousal spat.
7. The place of the weekly meeting is left to the Matrimonial/ Guardian Judge to determine. As has been observed, it is for the Mother to ensure that the Daughter has a healthy interaction with her Father, lest an opinion be formed that she is deliberately turning the Daughter against her Father. If such an opinion is formed by the Court, there would be no option available to the Court but to award/transfer the custody to the Father in the hope that with the change the child would adopt a more balanced and healthy attitude towards both her parents. My faith that Counsel for the parties shall both advise and assist in bringing about some sanity in their respective clients will, I turst, not be in vain.
8. The Petition is disposed of with these observations. Parties to appear before the Additional District Judge on 21st April, 2004.
April 12, 2004
(VIKRAMAJIT SEN)
JUDGE
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT:
CRP No.276/2003
Date of Hearing : March 15, 2004.
Date of Decision: April 12, 2004.
Hindu Marriage Act 1955 -Custody of the Minor Child
Paramjit Singh Lamba ...Petitioner
through Mr. J.P. Singh, Advocate
Versus
Smt. Prabjot Kaur ...Respondent
through Mr. K. Sultan Singh
with Mr. Manish Kumar, Advocates
CORAM:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
1. Whether reporters of local papers may be allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
VIKRAMAJIT SEN, J.
1. This Revision brings to the surface an important question which universally affects and afflicts all persons belonging to a broken home, viz. the custody of the minor child of the two warring spouses. It cannot be over-emphasised that the paramount consideration in all such situations is the well-being of the child. It is this aspect which must be kept in focus and the individual `rights' of the parents would recede into the shadows. It is but a human frailty for the Judge to be prejudiced by the reproachable and unbecoming conduct of a particular spouse while determining the manner in which the child's time is to be apportioned. It has been noticed that the Guardian Judge does not follow a uniform practice in this regard in that sometimes the parent who does not have the custody of the child is granted a meeting of a duration of one or two hours in a month, that too in the uncomfortable and uncongenial environment of the Court, while in other cases weekly visitation or access for several hours is ordered. It is trite to state, but necessary to reiterate, that it is the welfare of the child which must be kept in the fore, either while granting custody or visitation to the parent who does not have the custody. It must also be highlighted that orders of this genre are inherently interlocutory in nature, subject to modification from time to time. It is not essential that the Court accepts consent terms presented to it by the parents. The Court is also not powerless to cancel or modify an arrangement approved by it earlier, if change in circumstances so compel.
2. The Statute proclaims the father to be the natural guardian of the child but clarifies that till he/she attains the age of five years, his/her custody would ordinarily be granted to the mother. The Legislature merely recognises the universal experience and observation that the mother is better equipped and inclined in bringing-up the children. Homo sapiens are the most advanced and intelligent species but there is some commonality with other animals amongst whom it is ubiquitously the mother which cares for the offspring upto adolescence. The Hon'ble Supreme Court, however, has clarified in Kumar V. Jahgirdar vs. Chethana Ramatheertha, 2004(1) Scale 149 that it does not subscribe to the observations that a mother is always preferable to the father so far as the custody of the child is concerned. Although the Hon'ble Supreme Court had found that the child had not been brainwashed in the case before it, it was expressly aware of the reality that the child's mind is invariably poisoned against the other parent. Such a practice must be unreservedly deprecated, as it is wholly deleterious to the welfare of the child concerned and to the development of the personality. Every child requires exposure to and influence of both his parents. Visitation in Court precincts should be resorted to where there is no other option, or where the conduct of a parent is deviant or unnatural thereby necessitating jural monitoring.
3. In the present case the Father has for various reasons, which I need not discuss threadbare, not had much interaction with his daughter. It has been explained that he was pursuing studies in the United States of America during the infancy of his daughter. Visitation between 3:00 P.M. to 4:00 P.M. on the last Saturday of the month, in the Court precincts, appears to have been granted on 23.3.2001. The present Additional District Judge has taken an adverse view of the fact that the Father did not assail the previous Order in an Appeal or Revision. In my considered view, however, it would be inappropriate to give a critical weightage to this fact. Assuming that a parent was uncaring at a particular stage in the child's life, he/she should not be shut out for all times to come. As already observed a decision should be taken not from the claim of the parent, but from the standpoint of the child concerned, since there can be no argument against the necessity for the child to spend time with both parents. In the present case the fixation of only one hour in a month has led to the consequence of the child refusing to meet her Father, that is, the Petitioner herein. Such an abhorrence towards the Father cannot but be the result of brainwashing by the Mother, which has succeeded in large measure because of the extremely limited access of the Petitioner with his daughter.
4. So far as the interests of the child are concerned it is imperative that a meaningful exposure to both parents should be ordained by the Court. One hour every month is clearly counter-productive for the achievement of this objective, as this case palpably manifests. The Court should endeavour to make a weekly meeting possible and only insist that this should be in the Court precincts where no other alternative is possible. It is only in rare cases that such a location should be prescribed. The duration of the meeting should be fixed so as to enable a healthy interaction between the parent and child, and should not be reduced to a mere legal formality. There is also no reason why a shorter visitation, say for one hour, should also not be ordered on a week day so that there is constant contact between the child and the parent. This may be onerous or awkward for the parent who has custody, but in a dismembered family, it cannot be avoided. The parents will eventually evolve a system and develop a pragmatic and healthy attitude where their lives continue in the smoothest manner possible even in such adverse and unfortunate circumstances.
5. In the impugned Order the Additional District Judge has understandably noted and has been adversely influenced by the fact that the application for a change in the interim arrangement and for custody of the child had been presented by the Father only on the filing of the Petition under Section 13(1) (ia) of the Hindu Marriage Act. This is also a reality, but the bluff of the parent filing such an application can be countered by allowing access/visitation rights to the child which the uninterested parent would eventually not fully avail of. In such a case the parent would run the danger not only of alienating the child forever, but also creating an occasion for modification in the duration of child access.
6. I would allow the present Revision by increasing the access of the Father to one hour every week, in the first instance. Since it is evident that the daughter is presently inimical towards meeting her Father, it is expected of the Respondent that she should create a congenial atmosphere which would obviate the meeting/visitation to be held in the Court of the Matrimonial/ Guardian Judge. If avoidable bickering does not end, the parents would end up wasting the better part of their lives in Court, and this should soon bring them to their senses. Their folly, however, is no justification for not endeavouring to achieve the best for the unfortunate child, who has no role or say in the spousal spat.
7. The place of the weekly meeting is left to the Matrimonial/ Guardian Judge to determine. As has been observed, it is for the Mother to ensure that the Daughter has a healthy interaction with her Father, lest an opinion be formed that she is deliberately turning the Daughter against her Father. If such an opinion is formed by the Court, there would be no option available to the Court but to award/transfer the custody to the Father in the hope that with the change the child would adopt a more balanced and healthy attitude towards both her parents. My faith that Counsel for the parties shall both advise and assist in bringing about some sanity in their respective clients will, I turst, not be in vain.
8. The Petition is disposed of with these observations. Parties to appear before the Additional District Judge on 21st April, 2004.
April 12, 2004
(VIKRAMAJIT SEN)
JUDGE
Rules for Child Custody - SC
CASE NO.:Appeal (civil) 1685-1686 of 2001
PETITIONER:R.V.SRINATH PRASAD
Vs.
RESPONDENT:NANDAMURI JAYAKRISHNA & ORS.
DATE OF JUDGMENT: 02/03/2001
BENCH:D.P. Mohapatra , Shivaraj V. Patil
JUDGMENT:D.P.MOHAPATRA,J.
Leave granted.
The controversy raised in this case relates to the interim custody of the two minor sons of the appellant. He
has filed this appeal assailing the judgment/order dated 16th November, 2000 of the High Court of Madras in which a Division Bench of the Court ordered that interim custody of the children should be with the maternal grand-parents, the respondents herein, till the matter is finally decided by the competent court. The Division Bench also directed the Family Court to number the petition filed by the respondents for custody of the children and dispose of the same as early as possible within three months of the date of receipt of
the order. It is stated in the judgment/order that interim custody of the children is to be given to their maternal
grand-parents for their better welfare and also to perform the rituals/karma of their deceased mother. The Court permitted the appellant and paternal grand- parents of the children to visit them, if they so desire, twice a month with prior intimation till the matter is finally decided.
The High Court also granted liberty to the parties to move the Court under the Guardians and Wards Act and also to move for an interim custody, after withdrawing the petition filed before the Family Court. It was made clear that any observation made in the judgment/order will not prejudice either side and the arrangement made in the order is only an interim arrangement and will not create any right or
prejudice to the case of either side. The facts of the case leading to the present proceeding, shorn of unnecessary details, may be stated thus: R.V.Srinath Prasad the appellant was married to Kumudini, daughter of respondent no.1. Two sons, Jay Viraj, now aged about 5 years and Neal Krishna aged about 3 years were born of the said wedlock.
Both the parties belong to well to do families. While respondent no.1 is the son of late N.T.Rama Rao, the
appellant is a businessman engaged in commercial activities in U.S.A. After their marriage in 1993 the couple lived in USA till December, 1999 and during the said period the two children were born, one in 1995 and the other in 1997. The wife returned to India with the two children in December, 1999 and lived with her parents-in-law at Chennai between January to July, 2000. On 24th October, 2000 the wife consumed some poisonous material in her friend’s house and fell ill. After remaining in coma from 24th October, 2000
she expired on 29th October, 2000. Shortly before the tragic incident happened the wife with her two children had shifted to a flat purchased by her father – at Chennai.
Before going to her friend’s house on 24th October, 2000 she had left the children with her parents-in-law. The cremation of her body was done in Chennai. The respondent no.1 filed a petition in the Family Court at Chennai seeking custody of the minor children on 7th November, 2000. On the same day he filed a writ petition in the High Court seeking, inter alia, a writ of Mandamus to the Family Court, Chennai
to dispose of the petition expeditiously. In the said writ petition, an application for interim order was filed with
the prayer, which reads as follows: “For the reasons stated in the accompanying affidavit, the petitioner herein prays that pending disposal of the above writ, this Honourable Court may be pleased to direct the respondents, to handover the interim custody of the Two grand children Jay Viraj Prasad and Neal Krishna to the petitioner to enable him to take them to Hyderabad for performing the Karma of their
deceased mother and the petitioner’s deceased daughter Kumudini on 8.11.2000 and continue to have the custody of the said two grand children until further orders of this Honourble Court and pass such other further order or orders as this Honourble Court may deem fit and proper, under such
circumstances of this case.”
(Emphasis supplied)
The writ petition and the interim application came up before a single Judge of the High Court on the same day i.e. the 7th November, 2000 on which day the learned single Judge while ordering notice of motion returnable by four weeks passed an ex- parte interim order, the operative portion of which reads as follows:
“Accordingly, there shall be a direction to the Commissioner of Police, Chennai to trace out the children
Jai Viraj and Neal Krishna immediately and handover the said children to the custody of the counsel on record for the petitioner Ms.B.Saraswati. When the children are handed over, they must be accompanied to Hyderabad with Police protection and the children must be allowed to perform obsequies. It is also made clear that the petitioner who is the maternal grand father of the children must be responsible for the safe custody of the children.”
(Emphasis supplied)
The said order was challenged before the Division Bench in Writ Appeal No.1954 of 2000 filed by the appellant herein. In the said appeal an application for interim order being CMP No.17059 of 2000, was also filed. The Division Bench disposed of the writ appeal as well as the application for interim order by the order dated 16th November, 2000 which is under challenge in this appeal.
Shri Shanti Bhushan, learned senior counsel appearing for the appellant strenuously urged that the entire approach of the Division Bench to the matter is grossly erroneous and that has vitiated the order passed by it. The Division Bench, submitted Shri Shanti Bhushan, has ignored the essential material facts; that the appellant, father of the minor children, is their natural guardian; that he has returned to India with a view to carry on business here; that he is staying with his parents at Chennai and that the children were staying with them. According to Shri Shanti Bhushan, no material was produced before the Division Bench and none has been noticed in the judgment/order under challenge which would even prima facie show that the custody
of the minor children should be changed. Shri Shanti Bhushan further submitted that the children are attached to their father and miss him very much. Both the children were attending school at Chennai and their schooling had to be discontinued in view of the order directing interim custody of the children to be given to the maternal grand- parents.
Refuting the observation in the judgment/order under challenge that the appellant stays in USA, Shri Shanti
Bhushan filed an affidavit by the appellant containing a statement that he has decided to settle down in Chennai for the purpose of carrying on business. He has also set up a factory at the Export Processing Zone at Chennai. It is further stated in the affidavit that the appellant stays with his parents – respondent nos.2 and 3 herein; his sister, who is a medical practitioner running a hospital at Coimbatore has two children, a daughter aged 7 years and a son aged 3 years; she visits Chennai at least twice a month. Referring to the affidavit Shri Shanti Bhushan submitted that if custody of the children is left with the appellant there will be no difficulty in giving them proper care and attention. They will have the company of the children of his sister. Shri Shanti Bhushan contended that the procedure followed by the Division Bench in hastily disposing of the writ appeal dealing with the interim custody of the children while leaving the matter to the Family Court for decision on merits is unsustainable and should be set aside.
Shri K.N.Bhat, learned senior counsel appearing for the respondents supported the contentions raised by Shri Shanti Bhushan. Shri Rakesh Dwivedi, learned senior counsel appearing for the contesting respondents urged that there are materials on record to show that in the life-time of the deceased wife, the appellant had ill-treated and ignored her which caused serious mental torture to the lady compelling her to part company with her husband and return to Chennai. Ultimately she committed suicide. Sri Dwivedi relied on the
note left by the deceased in support of his contention. It was the further submission of Sri Dwivedi that the deceased wife suspsected that her husband was having an extra-marital affair with one Tania Kapoor, whose father is a business associate of the appellant. In the circumstances of the case, Sri Dwivedi submitted it is in the best interest of the children to place them in custody of such a person.
Shri Dwivedi also raised the contention that the High Court has independent jurisdiction under the Letters Patent to decide the question of custody of minors and therefore, no exception can be taken to the impugned judgment/order on the ground of lack of jurisdiction.
Custody of minor children is a sensitive issue. It is also a matter involving sentimental attachment. Such a
matter is to be approached and tackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance.
At the outset, we would like to observe that it will not be fair and proper for us to delve deep into the merit of the case since the petition filed for custody of the minor children is pending before the Family Court at Hyderabad and any finding recorded or observation made by us in this proceeding may prejudice the parties. Therefore, we will try to avoid entering deep into the merits of the case as far as possible. On a perusal of the judgment/order passed by the Division Bench, we are constrained to observe that neither the manner of disposal of the proceeding nor the order directing the change of custody of the children from their father to their maternal grand-parents can be supported. The Division Bench appears to have lost sight of the factual position that the time of death of their mother the children were left in custody of their paternal grand parents with whom their father is staying and the attempt of the respondent no.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 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. It is relevant to state here that the respondent no.1 maternal grand-parents wanted immediate custody of the minor children for the purpose of performing certain obsequies in connection with the cremation ceremony of his deceased daughter and that purpose had been served by the order passed by the learned single Judge and such
necessity for interim custody had ceased when the Division Bench passed the judgment/order under challenge. On the materials on record we are not satisfied that there was any urgency in disposing of the case with such haste without affording reasonable opportunity to the appellant to place material on record. The procedure followed by the High Court is neither fair nor proper.
The High Court appears to have overlooked the settled principle 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 a sensitive matter like this no single factor can be taken to be decisive. Neither affluence nor capacity to provide confortable living should cloud the consideration by the Court. Here we may refer to the decision of this Court in Jai Prakash Khadria vs. Shyam Sunder Agarwalla and another 2000(6) SCC 598. In such matters usually, Courts while granting the custody of minor children to one party extend the facility of visiting them to the other. At the cost of repetition we may state that we are not discussing the merits of the case pleaded by the parties in detail since the application for the custody is pending for adjudication
before the Family Court at Hyderabad. For the reasons set forth in the preceding paragraphs we are not persuaded to sustain the order passed by the High Court changing the custody of the minor children from their father to their maternal grand parents.
The appeals are allowed. The order passed by the Division Bench dated 16.11.2000 in Writ Appeal No.1954/2000 and in C.M.P.No.17059/2000 is set aside. The respondent no.1 shall leave the minor children in the custody of the appellant. He will have the right to visit the children twice a month with prior intimation to the appellant. The appellant shall make necessary arrangements for the purpose. This order is passed without prejudice to the rights and contentions of the parties. There will,however, be no order for costs.
PETITIONER:R.V.SRINATH PRASAD
Vs.
RESPONDENT:NANDAMURI JAYAKRISHNA & ORS.
DATE OF JUDGMENT: 02/03/2001
BENCH:D.P. Mohapatra , Shivaraj V. Patil
JUDGMENT:D.P.MOHAPATRA,J.
Leave granted.
The controversy raised in this case relates to the interim custody of the two minor sons of the appellant. He
has filed this appeal assailing the judgment/order dated 16th November, 2000 of the High Court of Madras in which a Division Bench of the Court ordered that interim custody of the children should be with the maternal grand-parents, the respondents herein, till the matter is finally decided by the competent court. The Division Bench also directed the Family Court to number the petition filed by the respondents for custody of the children and dispose of the same as early as possible within three months of the date of receipt of
the order. It is stated in the judgment/order that interim custody of the children is to be given to their maternal
grand-parents for their better welfare and also to perform the rituals/karma of their deceased mother. The Court permitted the appellant and paternal grand- parents of the children to visit them, if they so desire, twice a month with prior intimation till the matter is finally decided.
The High Court also granted liberty to the parties to move the Court under the Guardians and Wards Act and also to move for an interim custody, after withdrawing the petition filed before the Family Court. It was made clear that any observation made in the judgment/order will not prejudice either side and the arrangement made in the order is only an interim arrangement and will not create any right or
prejudice to the case of either side. The facts of the case leading to the present proceeding, shorn of unnecessary details, may be stated thus: R.V.Srinath Prasad the appellant was married to Kumudini, daughter of respondent no.1. Two sons, Jay Viraj, now aged about 5 years and Neal Krishna aged about 3 years were born of the said wedlock.
Both the parties belong to well to do families. While respondent no.1 is the son of late N.T.Rama Rao, the
appellant is a businessman engaged in commercial activities in U.S.A. After their marriage in 1993 the couple lived in USA till December, 1999 and during the said period the two children were born, one in 1995 and the other in 1997. The wife returned to India with the two children in December, 1999 and lived with her parents-in-law at Chennai between January to July, 2000. On 24th October, 2000 the wife consumed some poisonous material in her friend’s house and fell ill. After remaining in coma from 24th October, 2000
she expired on 29th October, 2000. Shortly before the tragic incident happened the wife with her two children had shifted to a flat purchased by her father – at Chennai.
Before going to her friend’s house on 24th October, 2000 she had left the children with her parents-in-law. The cremation of her body was done in Chennai. The respondent no.1 filed a petition in the Family Court at Chennai seeking custody of the minor children on 7th November, 2000. On the same day he filed a writ petition in the High Court seeking, inter alia, a writ of Mandamus to the Family Court, Chennai
to dispose of the petition expeditiously. In the said writ petition, an application for interim order was filed with
the prayer, which reads as follows: “For the reasons stated in the accompanying affidavit, the petitioner herein prays that pending disposal of the above writ, this Honourable Court may be pleased to direct the respondents, to handover the interim custody of the Two grand children Jay Viraj Prasad and Neal Krishna to the petitioner to enable him to take them to Hyderabad for performing the Karma of their
deceased mother and the petitioner’s deceased daughter Kumudini on 8.11.2000 and continue to have the custody of the said two grand children until further orders of this Honourble Court and pass such other further order or orders as this Honourble Court may deem fit and proper, under such
circumstances of this case.”
(Emphasis supplied)
The writ petition and the interim application came up before a single Judge of the High Court on the same day i.e. the 7th November, 2000 on which day the learned single Judge while ordering notice of motion returnable by four weeks passed an ex- parte interim order, the operative portion of which reads as follows:
“Accordingly, there shall be a direction to the Commissioner of Police, Chennai to trace out the children
Jai Viraj and Neal Krishna immediately and handover the said children to the custody of the counsel on record for the petitioner Ms.B.Saraswati. When the children are handed over, they must be accompanied to Hyderabad with Police protection and the children must be allowed to perform obsequies. It is also made clear that the petitioner who is the maternal grand father of the children must be responsible for the safe custody of the children.”
(Emphasis supplied)
The said order was challenged before the Division Bench in Writ Appeal No.1954 of 2000 filed by the appellant herein. In the said appeal an application for interim order being CMP No.17059 of 2000, was also filed. The Division Bench disposed of the writ appeal as well as the application for interim order by the order dated 16th November, 2000 which is under challenge in this appeal.
Shri Shanti Bhushan, learned senior counsel appearing for the appellant strenuously urged that the entire approach of the Division Bench to the matter is grossly erroneous and that has vitiated the order passed by it. The Division Bench, submitted Shri Shanti Bhushan, has ignored the essential material facts; that the appellant, father of the minor children, is their natural guardian; that he has returned to India with a view to carry on business here; that he is staying with his parents at Chennai and that the children were staying with them. According to Shri Shanti Bhushan, no material was produced before the Division Bench and none has been noticed in the judgment/order under challenge which would even prima facie show that the custody
of the minor children should be changed. Shri Shanti Bhushan further submitted that the children are attached to their father and miss him very much. Both the children were attending school at Chennai and their schooling had to be discontinued in view of the order directing interim custody of the children to be given to the maternal grand- parents.
Refuting the observation in the judgment/order under challenge that the appellant stays in USA, Shri Shanti
Bhushan filed an affidavit by the appellant containing a statement that he has decided to settle down in Chennai for the purpose of carrying on business. He has also set up a factory at the Export Processing Zone at Chennai. It is further stated in the affidavit that the appellant stays with his parents – respondent nos.2 and 3 herein; his sister, who is a medical practitioner running a hospital at Coimbatore has two children, a daughter aged 7 years and a son aged 3 years; she visits Chennai at least twice a month. Referring to the affidavit Shri Shanti Bhushan submitted that if custody of the children is left with the appellant there will be no difficulty in giving them proper care and attention. They will have the company of the children of his sister. Shri Shanti Bhushan contended that the procedure followed by the Division Bench in hastily disposing of the writ appeal dealing with the interim custody of the children while leaving the matter to the Family Court for decision on merits is unsustainable and should be set aside.
Shri K.N.Bhat, learned senior counsel appearing for the respondents supported the contentions raised by Shri Shanti Bhushan. Shri Rakesh Dwivedi, learned senior counsel appearing for the contesting respondents urged that there are materials on record to show that in the life-time of the deceased wife, the appellant had ill-treated and ignored her which caused serious mental torture to the lady compelling her to part company with her husband and return to Chennai. Ultimately she committed suicide. Sri Dwivedi relied on the
note left by the deceased in support of his contention. It was the further submission of Sri Dwivedi that the deceased wife suspsected that her husband was having an extra-marital affair with one Tania Kapoor, whose father is a business associate of the appellant. In the circumstances of the case, Sri Dwivedi submitted it is in the best interest of the children to place them in custody of such a person.
Shri Dwivedi also raised the contention that the High Court has independent jurisdiction under the Letters Patent to decide the question of custody of minors and therefore, no exception can be taken to the impugned judgment/order on the ground of lack of jurisdiction.
Custody of minor children is a sensitive issue. It is also a matter involving sentimental attachment. Such a
matter is to be approached and tackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance.
At the outset, we would like to observe that it will not be fair and proper for us to delve deep into the merit of the case since the petition filed for custody of the minor children is pending before the Family Court at Hyderabad and any finding recorded or observation made by us in this proceeding may prejudice the parties. Therefore, we will try to avoid entering deep into the merits of the case as far as possible. On a perusal of the judgment/order passed by the Division Bench, we are constrained to observe that neither the manner of disposal of the proceeding nor the order directing the change of custody of the children from their father to their maternal grand-parents can be supported. The Division Bench appears to have lost sight of the factual position that the time of death of their mother the children were left in custody of their paternal grand parents with whom their father is staying and the attempt of the respondent no.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 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. It is relevant to state here that the respondent no.1 maternal grand-parents wanted immediate custody of the minor children for the purpose of performing certain obsequies in connection with the cremation ceremony of his deceased daughter and that purpose had been served by the order passed by the learned single Judge and such
necessity for interim custody had ceased when the Division Bench passed the judgment/order under challenge. On the materials on record we are not satisfied that there was any urgency in disposing of the case with such haste without affording reasonable opportunity to the appellant to place material on record. The procedure followed by the High Court is neither fair nor proper.
The High Court appears to have overlooked the settled principle 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 a sensitive matter like this no single factor can be taken to be decisive. Neither affluence nor capacity to provide confortable living should cloud the consideration by the Court. Here we may refer to the decision of this Court in Jai Prakash Khadria vs. Shyam Sunder Agarwalla and another 2000(6) SCC 598. In such matters usually, Courts while granting the custody of minor children to one party extend the facility of visiting them to the other. At the cost of repetition we may state that we are not discussing the merits of the case pleaded by the parties in detail since the application for the custody is pending for adjudication
before the Family Court at Hyderabad. For the reasons set forth in the preceding paragraphs we are not persuaded to sustain the order passed by the High Court changing the custody of the minor children from their father to their maternal grand parents.
The appeals are allowed. The order passed by the Division Bench dated 16.11.2000 in Writ Appeal No.1954/2000 and in C.M.P.No.17059/2000 is set aside. The respondent no.1 shall leave the minor children in the custody of the appellant. He will have the right to visit the children twice a month with prior intimation to the appellant. The appellant shall make necessary arrangements for the purpose. This order is passed without prejudice to the rights and contentions of the parties. There will,however, be no order for costs.
Child Custody to Father – Madras HC Verdict
Ramakrishna v. Priya Ganesan – HCP.No.108 of 2007 [2007] INTNHC 1149 (27 March 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27-03-2007
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE K. MOHAN RAM
H.C.P.NO.108 OF 2007
Ramakrishna Balasubramanian
Rep. by his duly attested
power agent P.R. Balasubramanian
No.5, 3rd Cross Street,
Jayanagar, Tambaram Santorium,
Chennai 600 047. .. Petitioner Vs.
1. Ms. Priya Ganesan
D/o.Ganesan
79/G, Luz Avenue, Mylapore,
Chennai 600 004.
2. The Commissioner of Police,
Egmore, Chennai 600 008.
3. The Inspector of Police,
Chrompet Police Station,
Chrompet, Chennai. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Habeas Corpus directing the respondents to produce the petitioner’s grand-daughter Miss. Nikhita Ramakrishnan before this Court and set her at liberty by handing over her custody to the petitioner. For Petitioner : Mr.P. Krishnan for Ms.T.S. Selvarani For Respondent-1 : Mrs. Geetha Ramaseshan For Respondents 2 &3 : Mr.M. Babu Muthu Meeran Addl. Public Prosecutor – - –
O R D E R
P.K. MISRA, J
This Habeas Corpus Petition has been filed on behalf of Ramakrishnan Balasubramanian by his father, who is the attested power of attorney holder. First respondent is the wife of Ramakrishnan Balasubramanian. Respondents 2 and 3 are police officials.
2. Prayer is for a direction to the respondents to secure the daughter of Ramakrishnan Balasubramanian and Respondent No.1. The marriage between Ramakrishnan Balasubramanian and Respondent No.1 took place in India on 4.7.1999. Thereafter the couple lived in United States of America. The daughter was born on 26.3.2004. Respondent No.1 has filed a petition for divorce in the year 2006 in the court of Pennsylvania in United States of America. Respondent No.1 has also filed a custody petition for the custody of the daughter. Even after filing of such proceedings for divorce, the husband and wife were residing in the same house. On 11.1.2007 the husband found that his wife – Respondent No.1 and the daughter – the alleged detenu, were absent. It has been stated :- “7. I state that the 1st respondent must have brought the child to India by forging my son’s signature in a letter as if my son gave his permission to take the child to India.” On 16.1.2007, the husband approached the Court of Common Pleas, Chester County, Pennsylavania for securing the custody of the child. The relevant portion of the order passed by such court is extracted hereunder :- “… 1. Until further order of Court, Father shall have SOLE LEGAL CUSTODY of NIKHITA RAMAKRISHNAN and Father shall have TEMPORARY SOLE PHYSICAL CUSTODY of the child.
2. Mother shall immediately return the child, and the child’s United States passport, to Father’s physical custody, or cause the child and the child’s passport to be returned to Father’s physical custody….” According to the petitioner’s case, in view of the order passed by the Court in U.S.A., the action of Respondent No.1 in keeping the child with herself in Madras (Chennai) is in contravention of the order passed by the American Court and amounts to illegal detention of the child against the court’s order and, therefore, the child should be secured and handed over so that she can be taken to United States of America to be handed over to the husband. In the Habeas Corpus Petition it has been stated that the child was ill-treated by the first respondent while at United States of America by beating the child and forcing the child to remain outside the home without adequate clothing. It is further alleged that during the last visit of the first respondent with the child to India, the child had suffered serious urinary infection because of the negligence of the mother. It has been further stated in the petition that after coming to India, Respondent No.1 with a view to harass the parents of the husband, has preferred baseless and illegal complaint alleging commission of offence under the Dowry Prohibition Act at “All Women Police Station, Mylapore”. It has been further stated that the deponent has lodged a complaint before the police on 19.1.2007, but no action was taken. Further complaint was filed on 22.1.2007 for recovery of the child from the illegal custody, but the third respondent refused to receive the same and subsequently such complaint was sent by registered post. On the basis of such allegations, the Habeas Corpus Petition, which was sworn to by the father of the petitioner-husband, was filed on 24.1.2007. Along with the petition, copy of the temporary custody order and copies of some other documents have been filed. A power of attorney executed by the petitioner in favour of his father authorising him to take action is filed.
3. After service of notice, Respondent No.1 has entered appearance and filed a counter affidavit. Marriage of the parties in India and subsequent birth of the child in United States of America is admitted. It is, however, stated in the counter that her husband had subjected her to extreme harassment and cruelty as a result of which she was forced to leave United States of America and come back to India. It has been further stated that O.P.No.193 of 2007 has been filed before I Addl. Family Court seeking for dissolution of marriage as well as custody of the child and alimony. It has been further stated that even though divorce proceedings had been initiated in September, 2006 in United States of America, she cannot continue the same as she is unable to live in United States of America due to the conduct of the husband. It has been further stated that there is no order of legal separation between the parties and the proceedings were pending at the time when she came to India. It is alleged that the conduct of the husband was unbearable and she was subjected to cruelty and was left with no resources and she was employed in a part-time job in a bank to take care of the minor child. It has been further stated :- “4. … I submit that on 7th and 8th of January, 2007, the Petitioner’s son picked up a big quarrel with me threatened to finish me and take away the child. He also told me that he would see to it that my mother and I are on the streets. I told him that if this is a situation I would come away to India since there was no safety and security for me in the USA. I also told him that I would like to decide the future course of action in India which he acknowledged. I submit that I came away to India on 11.01.2007.” It has been further stated that no order regarding custody of the child had been passed while she was at United States of America and such order was passed only after she came to India. The allegation regarding ill-treatment of the child has been denied. It is asserted that a false complaint had been given to the Department of Children, Youth and families in United States of America, but the Department after investigation did not find any truth in the allegation. The fact that the child was suffering from urinary infection is not denied, but it is stated that there was no negligence on the part of the deponent. It has been further stated that appropriate proceedings had been initiated in India and the matter has been posted for the appearance on 22.2.2007 and she has already intimated her counsel in United States of America that she does not wish to proceed with the case filed in United States of America.
4. While the present Habeas Corpus Petition was pending, the husband came from United States of America. We had called upon the husband and wife to remain present in court with a view to explore the possibility of reconciliation or amicable settlement of the dispute. However, both the parties and their Advocates have clearly stated that there is no possibility of any reconciliation nor there is any possibility of amicable solution.
5. The main problem obviously is relating to custody of the child. Admittedly the child is yet to complete three years.
6. Learned counsel appearing for the petitioner has raised the following contentions : (1) In view of the order passed by the competent court in United States of America and in view of the provisions contained in Section 13 of the Code of Civil Procedure (hereinafter referred to as “the C.P.C.”), Respondent No.1 is bound to handover the custody of the child to the father. (2) Father being the natural guardian of the child, there is no justification for Respondent No.1 to bring the child from United States of America and to detain her illegally.
7. Learned counsel appearing for Respondent No.1, on the other hand, has raised the following contentions :- (1) In view of the provisions contained in Section 6 of the Hindu Minority and Guardianship Act, 1956, the mother is entitled to retain custody of the minor child under the age of five. (2) The ex-parte order passed by United States of America court, while Respondent No.1 had already left United States of America, should not be enforced. Moreover, such order is not an order on merit and merely an ex-parte interim order. (3) Since Respondent No.1 has abandoned divorce proceedings in United States of America and initiated appropriate proceedings in the competent court in India, the matter should be decided in accordance with law applicable to the parties, who are admittedly governed by the Hindu Minority and Guardianship Act.
8. Before considering the main questions, certain undisputed facts may be noticed. (1) Both the husband and wife are Green card holders, even though they continue to be Indian citizens and passport holders. (2) The child being born in United States of America is obviously a citizen of United States of America by birth. (3) However, she is also an Indian citizen by virtue of the fact that she is the child of two Indian citizens. (This is so in view of the provisions contained in Section 4(1)(3) of the Indian Citizenship Act).
9. First contention of the counsel for the petitioner is based on the provisions contained in Section 13 C.P.C. The expression “foreign judgment” has been defined in Section 2(6) of the C.P.C. to mean the judgment of a foreign court.
10. The order relied upon by the petitioner expressly purports to be an interim order relating to interim custody until further orders. Therefore, such order cannot assume the characteristic of a foreign judgment as the order does not appear to be a final order. Moreover, such order was admittedly passed when Respondent No.1 had left the territorial jurisdiction of the court.
11. Learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court reported in AIR 1984 SC 1224 (SMT. SURINDER KAUR SANDHU v. HARBAX SINGH SANDHU AND ANOTHER). Even the counsel for Respondent No.1 has also placed reliance upon such decision. A careful reading of the said decision indicates that the question was relating to the validity of a final order of judgment and not an interlocutory order. Moreover, the Supreme Court, while considering the question as to whether minor should should be with the father or the mother, examined the question of welfare of the minor as an important consideration. The said decision will not come to the aid of the petitioner as, in the present case, the petitioner is relying upon an interim order and not a final order. Moreover, even assuming that the order relied upon is a final order, before directing handing over of the child pursuant to the said order, this Court is required to find out the welfare of the said which is of paramount importance. The Supreme Court observed :- “8. . . . On the whole, we are unable to agree that the welfare of the boy requires that he should live with his father or with the grand-parents. The father is a man without character who offered solicitation to the commission of his wife’s murder. The wife obtained an order of probation for him but, he abused her magnanimity by running away with the boy soon after the probationary period was over. Even in that act, he displayed a singular lack of respect for law by obtaining a duplicate passport for the boy on an untrue representation that the original passport was lost. The original passport was, to his knowledge, in the keeping of his wife. In this background, we do not regard the affluence of the husband’s parents to be a circumstance of such over-whelming importance as to tilt the balance in favour of the father on the question of what is truly for the welfare of the minor. At any rate, we are unable to agree that it will be less for the welfare of the minor if he lived with his mother. He was whisked away from her and the question is whether, there are any circumstances to support the view that the new environment in which he is wrongfully brought is more conducive to his welfare. He is about 8 years of age and the loving care of the mother ought not to be denied to him. The father is made of coarse stuff. The mother earns an income of # 100 a week, which is certainly not large by English standards, but is not so low as not to enable her to take reasonable care of the boy.
9. Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. As the matters are presented to us today, the boy, from his own point of view, ought to be in the custody of the mother.
10. We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. it cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modem theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where. the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing, him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company v. State of Washington, (1945) 90 L Ed 95, which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case). It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.” (Emphasis added) Ultimately, the appeal was allowed and a direction was given giving custody of the child to the mother.
12. From a reading of the aforesaid decision, it is of course apparent that the Supreme Court in the said case found that the British Court had jurisdiction to decide the question of custody of the minor child, who was a British citizen. However, it cannot be said that the Supreme Court rested its decision merely on the ground that an order of a foreign court was to be enforced and obviously the Supreme Court considered the question of welfare of the minor.
13. Learned counsel for the petitioner has placed strong reliance upon the Full Bench decision of Kerala High Court reported in AIR 1970 Kerala 1 (MARGGARATE MARIA PULPARAMPIL NEE FELDMAN v. Dr. CHACKO PULPARAMPIL AND OTHERS). In the said decision, it was observed :- “14. Following the above decisions we hold that this Court should respect the order of the German Court and allow this petition unless such a course is not in the interests of the welfare of the children. We are aware that the father is the legal and the natural guardian. And it is arguable that even when the children are in the control of the mother, the legal custody continues with the father and that if the father takes the children from the mother his custody will not be illegal as he has got legal authority for the custody of the children. This certainly will not apply in all cases and in all circumstances. This is clear even from the decision in AIR 1914 PC 41 relied on by 1st respondent’s counsel. Whether the rule will apply in a case where there was a solemn agreement between the father and the mother that the children should be with the mother is doubtful. Authority is not wanting that in such cases a unilateral breach of that agreement by the father or the mother will not be countenanced by Courts. Whatever that be, if such an agreement is accepted by a court of competent jurisdiction and embodied in an order of that Court, we feel no doubt that that order can neither be ignored nor flouted with impunity by one of the spouses.”
14. Even the aforesaid decision recognizes the principle that while considering such aspects, paramount consideration is welfare of the child.
15. Whatever little doubt one could entertain on such aspects, in our considered opinion, the decision of the Supreme Court reported in AIR 2000 SC 1019 (SARITA SHARMA v. SUSHIL SHARMA), relied upon by learned counsel for Respondent No.1 makes the position very clear that while considering such aspects, notwithstanding the fact that there may be some foreign judgment, the court is required to weigh the welfare of the child as the prime consideration. In such decision, after noticing the decision of the Supreme Court in AIR 1984 SC 1224 (cited supra), it was observed :- “6. Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from U.S.A. despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. . . . . Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the Habeas Corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away of U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of mother returning to U.S.A. in the interest of the children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the Court in U.S.A. the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights.” (Emphasis added)
16. Parties being admittedly Hindu, obviously the Hindu Minority and Guardianship Act, 1956 is applicable. Sections 6 and 7 of such Act being relevant, are extracted hereunder :- “6. Natural guardians of a Hindu minor.- The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl – the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father; (c) in the case of a married girl – the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section – (a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
7. Natural guardianship of adopted son.- The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.”
17. A conjoint reading of the aforesaid provisions makes it clear that father is the guardian of a minor child. However, when the child is less than five years, ordinarily custody of the child should be with the mother. Ultimately, the Court is required to find out what is best for the interest of the child and even in a fit case, custody of a minor child can be with a person other than the father and mother of the child. The paramount consideration is the welfare of the child.
18. Learned counsel appearing for the petitioner has cited at least a dozen decisions highlighting such aspect. It is not necessary to refer to all such decisions, save and except a few decisions of the Apex Court. In AIR 1982 SC 1276 (THRITY HOSHIE DOLIKUKA v. HOSHIAM SHAVAKSHA DOLIKUKA), it was observed :- “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 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. In Halsbury’s Laws of England, 3rd Edn., Vol.21, the Law is succinctly stated in para 428 at pp.193-194 in the following terms:- “428. Infant’s welfare paramount. In any proceedings before any Court, concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof, the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead. Even where the infant is a foreign national, the Court, while giving weight to the views of the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other country.” (Emphasis added by us)
19. Learned counsel for the petitioner has placed strong reliance upon the decision of the Supreme Court reported in AIR 1987 SC 3 (MRS. ELIZABETH DINSHAW v. ARVAND M. DINSHAW AND ANOTHER), wherein the Supreme Court while upholding the prayer of the mother, an American, criticised the conduct of the Indian father, who had brought the child to India notwithstanding the order passed by the American Court. However, in the said decision, the Supreme Court also recognised the fact that interest and welfare of the minor is paramount by observing:- “8. Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole an predominant criterion what would best serve the interest and welfare of the minor.”
20. The other decisions of several High Courts, including those of Madras High Court, only reflect the aforesaid aspect that the child’s welfare is of paramount consideration and have recognized the various facets. From the conspectus of the decisions noticed and referred to above, it can be said that, while considering the question of grant of custody, even where one or the other party is armed with a decision of a competent foreign court, the Indian Court asked to give effect to the decision of such foreign court is not to be guided merely by the considerations highlighted in Section 13 CPC regarding enforceability of foreign judgment, but required to consider the welfare of the minor as the paramount consideration. This position is clear from the decision of the Supreme Court in AIR 1984 SC 1224 (cited supra), AIR 1970 KERALA 1 (cited supra), which have been relied upon by the counsel for the petitioner himself , and from the decision of the Supreme Court in AIR 2000 SC 1019 (cited supra). Keeping in view the aforesaid principle, the question to be now considered is whether custody of the minor child should be handed over to the father.
21. It is no doubt true that the father is armed with an order of the foreign court, but such order appears to be merely interlocutory. The materials which have been highlighted in the Habeas Corpus Petition either by the petitioner or even by Respondent No.1 have not focussed on the paramount consideration relating to welfare of the minor and both the parties are relying upon their so called rights. Father is relying upon the fact that under Section 6 of the Hindu Minority and Guardianship Act, he is the guardian of the minor child. He is also harping upon the interlocutory order passed by the American court. Mother of the child is emphasizing upon the proviso contained in Section 6(a) to the effect that the minor who has not completed the age of five years would ordinarily be with the mother. She also submitted that at the time when she came to India, there was no order relating to interim custody and, therefore, it cannot be said that she had willfully violated any order of the competent court.
22. A bare reading of Section 13 of the Hindu Minority and Guardianship Act, 1956 and the various decisions noticed earlier, leaves no room for doubt that notwithstanding the so called right of either parents to be the guardian, ultimately the welfare of the minor is of paramount consideration. The decisions which have been noted, only emphasis this aspect. The question as to what would constitute in the best interest of the minor would obviously depend upon several circumstances. As already noticed, materials which have been indicated in the petition or in the counter affidavit do not throw much light on such vital aspect. In such circumstances, we do not think it appropriate to finalise the matter relating to custody of the minor child on the basis of the incomplete materials in this Habeas Corpus Petition. On the other hand, since admittedly a proceeding has been initiated at the instance of the wife before the I Addl. Family Court, Madras and the husband has entered appearance and has taken time for filing counter, we direct that the question relating to custody should be finalised by the said court in accordance with law. It goes without saying that such court will decide the matter on the basis of the relevant evidence to be adduced by both the parties and our present order should not be construed as expressing any opinion on either way in the matter.
23. During pendency of this Habeas Corpus, some interim arrangement has been made giving opportunity to the father to take the child and to spend sometime with the child. We feel interest of justice would be served by directing that the mother shall permit the child to be with the father between 10.30 AM and 4.00 PM twice a week during working days, preferably on Monday and Thursday. For the aforesaid purpose, the child can be brought to the office of the concerned Advocate.
24. If the father of the child finds it difficult to stay on for finalisation of the proceedings, it would be obviously open for him to authorise his father, who has filed the present Habeas Corpus Petition, on his behalf to prosecute such proceedings before the concerned Family Court and it is expected that no unnecessary technical plea should be permitted to be raised on such aspect.
25. Keeping in view the urgency of the matter, we further direct the I Addl. Judge, Family Court, Madras to dispose of the matter by the end of June, 2007. Keeping in view the complexity of the matter, we further direct that both the parties shall be permitted to appear through their Advocates, if they so desire.
26. Subject to the aforesaid observations and directions, the Habeas Corpus Petition is disposed of. dpk
To
1. The Commissioner of Police,
Egmore, Chennai 600 008.
2. The Inspector of Police,
Chrompet Police Station,
Chrompet, Chennai.
3. The Public Prosecutor,
High Court, Madras.
4. The I Addl. Family Court Judge,
High Court Buildings,
Chennai 600 104.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27-03-2007
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE K. MOHAN RAM
H.C.P.NO.108 OF 2007
Ramakrishna Balasubramanian
Rep. by his duly attested
power agent P.R. Balasubramanian
No.5, 3rd Cross Street,
Jayanagar, Tambaram Santorium,
Chennai 600 047. .. Petitioner Vs.
1. Ms. Priya Ganesan
D/o.Ganesan
79/G, Luz Avenue, Mylapore,
Chennai 600 004.
2. The Commissioner of Police,
Egmore, Chennai 600 008.
3. The Inspector of Police,
Chrompet Police Station,
Chrompet, Chennai. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Habeas Corpus directing the respondents to produce the petitioner’s grand-daughter Miss. Nikhita Ramakrishnan before this Court and set her at liberty by handing over her custody to the petitioner. For Petitioner : Mr.P. Krishnan for Ms.T.S. Selvarani For Respondent-1 : Mrs. Geetha Ramaseshan For Respondents 2 &3 : Mr.M. Babu Muthu Meeran Addl. Public Prosecutor – - –
O R D E R
P.K. MISRA, J
This Habeas Corpus Petition has been filed on behalf of Ramakrishnan Balasubramanian by his father, who is the attested power of attorney holder. First respondent is the wife of Ramakrishnan Balasubramanian. Respondents 2 and 3 are police officials.
2. Prayer is for a direction to the respondents to secure the daughter of Ramakrishnan Balasubramanian and Respondent No.1. The marriage between Ramakrishnan Balasubramanian and Respondent No.1 took place in India on 4.7.1999. Thereafter the couple lived in United States of America. The daughter was born on 26.3.2004. Respondent No.1 has filed a petition for divorce in the year 2006 in the court of Pennsylvania in United States of America. Respondent No.1 has also filed a custody petition for the custody of the daughter. Even after filing of such proceedings for divorce, the husband and wife were residing in the same house. On 11.1.2007 the husband found that his wife – Respondent No.1 and the daughter – the alleged detenu, were absent. It has been stated :- “7. I state that the 1st respondent must have brought the child to India by forging my son’s signature in a letter as if my son gave his permission to take the child to India.” On 16.1.2007, the husband approached the Court of Common Pleas, Chester County, Pennsylavania for securing the custody of the child. The relevant portion of the order passed by such court is extracted hereunder :- “… 1. Until further order of Court, Father shall have SOLE LEGAL CUSTODY of NIKHITA RAMAKRISHNAN and Father shall have TEMPORARY SOLE PHYSICAL CUSTODY of the child.
2. Mother shall immediately return the child, and the child’s United States passport, to Father’s physical custody, or cause the child and the child’s passport to be returned to Father’s physical custody….” According to the petitioner’s case, in view of the order passed by the Court in U.S.A., the action of Respondent No.1 in keeping the child with herself in Madras (Chennai) is in contravention of the order passed by the American Court and amounts to illegal detention of the child against the court’s order and, therefore, the child should be secured and handed over so that she can be taken to United States of America to be handed over to the husband. In the Habeas Corpus Petition it has been stated that the child was ill-treated by the first respondent while at United States of America by beating the child and forcing the child to remain outside the home without adequate clothing. It is further alleged that during the last visit of the first respondent with the child to India, the child had suffered serious urinary infection because of the negligence of the mother. It has been further stated in the petition that after coming to India, Respondent No.1 with a view to harass the parents of the husband, has preferred baseless and illegal complaint alleging commission of offence under the Dowry Prohibition Act at “All Women Police Station, Mylapore”. It has been further stated that the deponent has lodged a complaint before the police on 19.1.2007, but no action was taken. Further complaint was filed on 22.1.2007 for recovery of the child from the illegal custody, but the third respondent refused to receive the same and subsequently such complaint was sent by registered post. On the basis of such allegations, the Habeas Corpus Petition, which was sworn to by the father of the petitioner-husband, was filed on 24.1.2007. Along with the petition, copy of the temporary custody order and copies of some other documents have been filed. A power of attorney executed by the petitioner in favour of his father authorising him to take action is filed.
3. After service of notice, Respondent No.1 has entered appearance and filed a counter affidavit. Marriage of the parties in India and subsequent birth of the child in United States of America is admitted. It is, however, stated in the counter that her husband had subjected her to extreme harassment and cruelty as a result of which she was forced to leave United States of America and come back to India. It has been further stated that O.P.No.193 of 2007 has been filed before I Addl. Family Court seeking for dissolution of marriage as well as custody of the child and alimony. It has been further stated that even though divorce proceedings had been initiated in September, 2006 in United States of America, she cannot continue the same as she is unable to live in United States of America due to the conduct of the husband. It has been further stated that there is no order of legal separation between the parties and the proceedings were pending at the time when she came to India. It is alleged that the conduct of the husband was unbearable and she was subjected to cruelty and was left with no resources and she was employed in a part-time job in a bank to take care of the minor child. It has been further stated :- “4. … I submit that on 7th and 8th of January, 2007, the Petitioner’s son picked up a big quarrel with me threatened to finish me and take away the child. He also told me that he would see to it that my mother and I are on the streets. I told him that if this is a situation I would come away to India since there was no safety and security for me in the USA. I also told him that I would like to decide the future course of action in India which he acknowledged. I submit that I came away to India on 11.01.2007.” It has been further stated that no order regarding custody of the child had been passed while she was at United States of America and such order was passed only after she came to India. The allegation regarding ill-treatment of the child has been denied. It is asserted that a false complaint had been given to the Department of Children, Youth and families in United States of America, but the Department after investigation did not find any truth in the allegation. The fact that the child was suffering from urinary infection is not denied, but it is stated that there was no negligence on the part of the deponent. It has been further stated that appropriate proceedings had been initiated in India and the matter has been posted for the appearance on 22.2.2007 and she has already intimated her counsel in United States of America that she does not wish to proceed with the case filed in United States of America.
4. While the present Habeas Corpus Petition was pending, the husband came from United States of America. We had called upon the husband and wife to remain present in court with a view to explore the possibility of reconciliation or amicable settlement of the dispute. However, both the parties and their Advocates have clearly stated that there is no possibility of any reconciliation nor there is any possibility of amicable solution.
5. The main problem obviously is relating to custody of the child. Admittedly the child is yet to complete three years.
6. Learned counsel appearing for the petitioner has raised the following contentions : (1) In view of the order passed by the competent court in United States of America and in view of the provisions contained in Section 13 of the Code of Civil Procedure (hereinafter referred to as “the C.P.C.”), Respondent No.1 is bound to handover the custody of the child to the father. (2) Father being the natural guardian of the child, there is no justification for Respondent No.1 to bring the child from United States of America and to detain her illegally.
7. Learned counsel appearing for Respondent No.1, on the other hand, has raised the following contentions :- (1) In view of the provisions contained in Section 6 of the Hindu Minority and Guardianship Act, 1956, the mother is entitled to retain custody of the minor child under the age of five. (2) The ex-parte order passed by United States of America court, while Respondent No.1 had already left United States of America, should not be enforced. Moreover, such order is not an order on merit and merely an ex-parte interim order. (3) Since Respondent No.1 has abandoned divorce proceedings in United States of America and initiated appropriate proceedings in the competent court in India, the matter should be decided in accordance with law applicable to the parties, who are admittedly governed by the Hindu Minority and Guardianship Act.
8. Before considering the main questions, certain undisputed facts may be noticed. (1) Both the husband and wife are Green card holders, even though they continue to be Indian citizens and passport holders. (2) The child being born in United States of America is obviously a citizen of United States of America by birth. (3) However, she is also an Indian citizen by virtue of the fact that she is the child of two Indian citizens. (This is so in view of the provisions contained in Section 4(1)(3) of the Indian Citizenship Act).
9. First contention of the counsel for the petitioner is based on the provisions contained in Section 13 C.P.C. The expression “foreign judgment” has been defined in Section 2(6) of the C.P.C. to mean the judgment of a foreign court.
10. The order relied upon by the petitioner expressly purports to be an interim order relating to interim custody until further orders. Therefore, such order cannot assume the characteristic of a foreign judgment as the order does not appear to be a final order. Moreover, such order was admittedly passed when Respondent No.1 had left the territorial jurisdiction of the court.
11. Learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court reported in AIR 1984 SC 1224 (SMT. SURINDER KAUR SANDHU v. HARBAX SINGH SANDHU AND ANOTHER). Even the counsel for Respondent No.1 has also placed reliance upon such decision. A careful reading of the said decision indicates that the question was relating to the validity of a final order of judgment and not an interlocutory order. Moreover, the Supreme Court, while considering the question as to whether minor should should be with the father or the mother, examined the question of welfare of the minor as an important consideration. The said decision will not come to the aid of the petitioner as, in the present case, the petitioner is relying upon an interim order and not a final order. Moreover, even assuming that the order relied upon is a final order, before directing handing over of the child pursuant to the said order, this Court is required to find out the welfare of the said which is of paramount importance. The Supreme Court observed :- “8. . . . On the whole, we are unable to agree that the welfare of the boy requires that he should live with his father or with the grand-parents. The father is a man without character who offered solicitation to the commission of his wife’s murder. The wife obtained an order of probation for him but, he abused her magnanimity by running away with the boy soon after the probationary period was over. Even in that act, he displayed a singular lack of respect for law by obtaining a duplicate passport for the boy on an untrue representation that the original passport was lost. The original passport was, to his knowledge, in the keeping of his wife. In this background, we do not regard the affluence of the husband’s parents to be a circumstance of such over-whelming importance as to tilt the balance in favour of the father on the question of what is truly for the welfare of the minor. At any rate, we are unable to agree that it will be less for the welfare of the minor if he lived with his mother. He was whisked away from her and the question is whether, there are any circumstances to support the view that the new environment in which he is wrongfully brought is more conducive to his welfare. He is about 8 years of age and the loving care of the mother ought not to be denied to him. The father is made of coarse stuff. The mother earns an income of # 100 a week, which is certainly not large by English standards, but is not so low as not to enable her to take reasonable care of the boy.
9. Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. As the matters are presented to us today, the boy, from his own point of view, ought to be in the custody of the mother.
10. We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. it cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modem theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where. the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing, him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company v. State of Washington, (1945) 90 L Ed 95, which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case). It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.” (Emphasis added) Ultimately, the appeal was allowed and a direction was given giving custody of the child to the mother.
12. From a reading of the aforesaid decision, it is of course apparent that the Supreme Court in the said case found that the British Court had jurisdiction to decide the question of custody of the minor child, who was a British citizen. However, it cannot be said that the Supreme Court rested its decision merely on the ground that an order of a foreign court was to be enforced and obviously the Supreme Court considered the question of welfare of the minor.
13. Learned counsel for the petitioner has placed strong reliance upon the Full Bench decision of Kerala High Court reported in AIR 1970 Kerala 1 (MARGGARATE MARIA PULPARAMPIL NEE FELDMAN v. Dr. CHACKO PULPARAMPIL AND OTHERS). In the said decision, it was observed :- “14. Following the above decisions we hold that this Court should respect the order of the German Court and allow this petition unless such a course is not in the interests of the welfare of the children. We are aware that the father is the legal and the natural guardian. And it is arguable that even when the children are in the control of the mother, the legal custody continues with the father and that if the father takes the children from the mother his custody will not be illegal as he has got legal authority for the custody of the children. This certainly will not apply in all cases and in all circumstances. This is clear even from the decision in AIR 1914 PC 41 relied on by 1st respondent’s counsel. Whether the rule will apply in a case where there was a solemn agreement between the father and the mother that the children should be with the mother is doubtful. Authority is not wanting that in such cases a unilateral breach of that agreement by the father or the mother will not be countenanced by Courts. Whatever that be, if such an agreement is accepted by a court of competent jurisdiction and embodied in an order of that Court, we feel no doubt that that order can neither be ignored nor flouted with impunity by one of the spouses.”
14. Even the aforesaid decision recognizes the principle that while considering such aspects, paramount consideration is welfare of the child.
15. Whatever little doubt one could entertain on such aspects, in our considered opinion, the decision of the Supreme Court reported in AIR 2000 SC 1019 (SARITA SHARMA v. SUSHIL SHARMA), relied upon by learned counsel for Respondent No.1 makes the position very clear that while considering such aspects, notwithstanding the fact that there may be some foreign judgment, the court is required to weigh the welfare of the child as the prime consideration. In such decision, after noticing the decision of the Supreme Court in AIR 1984 SC 1224 (cited supra), it was observed :- “6. Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from U.S.A. despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. . . . . Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the Habeas Corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away of U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of mother returning to U.S.A. in the interest of the children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the Court in U.S.A. the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights.” (Emphasis added)
16. Parties being admittedly Hindu, obviously the Hindu Minority and Guardianship Act, 1956 is applicable. Sections 6 and 7 of such Act being relevant, are extracted hereunder :- “6. Natural guardians of a Hindu minor.- The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl – the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father; (c) in the case of a married girl – the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section – (a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
7. Natural guardianship of adopted son.- The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.”
17. A conjoint reading of the aforesaid provisions makes it clear that father is the guardian of a minor child. However, when the child is less than five years, ordinarily custody of the child should be with the mother. Ultimately, the Court is required to find out what is best for the interest of the child and even in a fit case, custody of a minor child can be with a person other than the father and mother of the child. The paramount consideration is the welfare of the child.
18. Learned counsel appearing for the petitioner has cited at least a dozen decisions highlighting such aspect. It is not necessary to refer to all such decisions, save and except a few decisions of the Apex Court. In AIR 1982 SC 1276 (THRITY HOSHIE DOLIKUKA v. HOSHIAM SHAVAKSHA DOLIKUKA), it was observed :- “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 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. In Halsbury’s Laws of England, 3rd Edn., Vol.21, the Law is succinctly stated in para 428 at pp.193-194 in the following terms:- “428. Infant’s welfare paramount. In any proceedings before any Court, concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof, the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead. Even where the infant is a foreign national, the Court, while giving weight to the views of the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other country.” (Emphasis added by us)
19. Learned counsel for the petitioner has placed strong reliance upon the decision of the Supreme Court reported in AIR 1987 SC 3 (MRS. ELIZABETH DINSHAW v. ARVAND M. DINSHAW AND ANOTHER), wherein the Supreme Court while upholding the prayer of the mother, an American, criticised the conduct of the Indian father, who had brought the child to India notwithstanding the order passed by the American Court. However, in the said decision, the Supreme Court also recognised the fact that interest and welfare of the minor is paramount by observing:- “8. Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole an predominant criterion what would best serve the interest and welfare of the minor.”
20. The other decisions of several High Courts, including those of Madras High Court, only reflect the aforesaid aspect that the child’s welfare is of paramount consideration and have recognized the various facets. From the conspectus of the decisions noticed and referred to above, it can be said that, while considering the question of grant of custody, even where one or the other party is armed with a decision of a competent foreign court, the Indian Court asked to give effect to the decision of such foreign court is not to be guided merely by the considerations highlighted in Section 13 CPC regarding enforceability of foreign judgment, but required to consider the welfare of the minor as the paramount consideration. This position is clear from the decision of the Supreme Court in AIR 1984 SC 1224 (cited supra), AIR 1970 KERALA 1 (cited supra), which have been relied upon by the counsel for the petitioner himself , and from the decision of the Supreme Court in AIR 2000 SC 1019 (cited supra). Keeping in view the aforesaid principle, the question to be now considered is whether custody of the minor child should be handed over to the father.
21. It is no doubt true that the father is armed with an order of the foreign court, but such order appears to be merely interlocutory. The materials which have been highlighted in the Habeas Corpus Petition either by the petitioner or even by Respondent No.1 have not focussed on the paramount consideration relating to welfare of the minor and both the parties are relying upon their so called rights. Father is relying upon the fact that under Section 6 of the Hindu Minority and Guardianship Act, he is the guardian of the minor child. He is also harping upon the interlocutory order passed by the American court. Mother of the child is emphasizing upon the proviso contained in Section 6(a) to the effect that the minor who has not completed the age of five years would ordinarily be with the mother. She also submitted that at the time when she came to India, there was no order relating to interim custody and, therefore, it cannot be said that she had willfully violated any order of the competent court.
22. A bare reading of Section 13 of the Hindu Minority and Guardianship Act, 1956 and the various decisions noticed earlier, leaves no room for doubt that notwithstanding the so called right of either parents to be the guardian, ultimately the welfare of the minor is of paramount consideration. The decisions which have been noted, only emphasis this aspect. The question as to what would constitute in the best interest of the minor would obviously depend upon several circumstances. As already noticed, materials which have been indicated in the petition or in the counter affidavit do not throw much light on such vital aspect. In such circumstances, we do not think it appropriate to finalise the matter relating to custody of the minor child on the basis of the incomplete materials in this Habeas Corpus Petition. On the other hand, since admittedly a proceeding has been initiated at the instance of the wife before the I Addl. Family Court, Madras and the husband has entered appearance and has taken time for filing counter, we direct that the question relating to custody should be finalised by the said court in accordance with law. It goes without saying that such court will decide the matter on the basis of the relevant evidence to be adduced by both the parties and our present order should not be construed as expressing any opinion on either way in the matter.
23. During pendency of this Habeas Corpus, some interim arrangement has been made giving opportunity to the father to take the child and to spend sometime with the child. We feel interest of justice would be served by directing that the mother shall permit the child to be with the father between 10.30 AM and 4.00 PM twice a week during working days, preferably on Monday and Thursday. For the aforesaid purpose, the child can be brought to the office of the concerned Advocate.
24. If the father of the child finds it difficult to stay on for finalisation of the proceedings, it would be obviously open for him to authorise his father, who has filed the present Habeas Corpus Petition, on his behalf to prosecute such proceedings before the concerned Family Court and it is expected that no unnecessary technical plea should be permitted to be raised on such aspect.
25. Keeping in view the urgency of the matter, we further direct the I Addl. Judge, Family Court, Madras to dispose of the matter by the end of June, 2007. Keeping in view the complexity of the matter, we further direct that both the parties shall be permitted to appear through their Advocates, if they so desire.
26. Subject to the aforesaid observations and directions, the Habeas Corpus Petition is disposed of. dpk
To
1. The Commissioner of Police,
Egmore, Chennai 600 008.
2. The Inspector of Police,
Chrompet Police Station,
Chrompet, Chennai.
3. The Public Prosecutor,
High Court, Madras.
4. The I Addl. Family Court Judge,
High Court Buildings,
Chennai 600 104.
Settle custody cases in 3 months: HC
Chandigarh
Chandigarh for over six months will now be decided within three months.
Taking cognizance of long delays, the Punjab and Haryana High Court has also empowered the
district judges to deal with dereliction, if any, on part of the judicial officer in doing so. The
registrar (vigilance), Punjab and Haryana, have been appointed nodal officer for supervising the
entire exercise.
Though the exact number of such cases is not immediately known, some of the cases have
been pending for over a decade. Among the oldest is a case pending since 1998 in the
guardian court in Amritsar.
The directions to adopt proactive approach for aborting “unwarranted delays” came on a
petition filed by an Amritsar resident, seeking the custody of his minor granddaughter, following
the death of the girl’s parents. The girl is currently with her maternal grandparents. The matter
has been pending for over a year now.
Justice SD Anand asserted: The matters pertaining to child custody require utmost and
expeditious consideration. In case of embitterment between the estranged spouses, it is the
children who actually bear the brunt. They are deprived of simultaneous love and affection of
both the parents. It is they who suffer emotionally, and in silence too.
“As matters which are already six months old are concerned, the courts concerned shall ensure
their final disposal within three months from the date of this order.
“It will be personal administrative responsibility of the district judge to keep a tab on the
progress of the cases falling in the category. If the district judge finds any dereliction on the part
of the judicial officer concerned in expeditious disposal of cases of the category, he shall pass
appropriate order on the administrative side; and if required, refer the matter to the high court
for appropriate order in this context.
“If required, the court shall be entitled to consider duly notified preponement of the priority area
litigation of the indicated category....
“If there is any peculiar difficulty experienced by the judicial officer in the final disposal, he shall
be under duty to intimate facts hindering the progress to the district judges, who shall pass on
that information to the high court,” Justice Anand concluded.
: Child custody case pending in the subordinate courts of Punjab, Haryana and
Citations for Child Custody - Build up your case
Further, few helpful “reasoning” for your kind preview to build up your clients case;
1. In Shoib @ Shebu v. Sabir Ali the Allahabad High Court while conceding the entitlement of the mother the custody of her male child until he has completed the age of seven years held that the welfare of the child would be kept in view before deciding the custody. In that case in fact the son who was only 4 years of age was allowed to remain with the father and the Court without arriving at any adverse conclusions regarding the mother's character or conduct decided that it was in the paramount interest of the 4 year old son to allow him to remain with the father and the father's family.
Re.: 1986 (II) DMC 505 at 506 (All, HC)
2. In Bilkis w/o Munne Khan v. Munne Khan, a Mohammedan wife who was living separately from her husband filed a petition for custody of her minor son aged about 2 1/2 years. It was found that she was residing at a distance from the husband's home and neglecting the child even when their relations were cordial. On these facts the court held that it was not in the interest of the welfare of the child though the child was of tender years to give his custody to the wife. Custody of the child therefore was given to the father.
Re.: 1987 (32) M.P.L.J. 430
3. In Y. Varalakshmi v. Kanta Durga Prasad, the Division Bench of the Andhra Pradesh High Court gave custody of 5 year old boy to the father in the interests of the child. The child had been happily residing with the father and his parents when the mother had applied for custody. The trial court refused custody to the mother and the appeal court upheld the refusal.
Re.: (1989) 1 DMC 379
4. In Lekh Raj Kukreja v. Smt Raymon, the Court was concerned with the question of the interim custody of a minor male child aged 11 years. The trial court gave the custody to the mother on the ground that the minor son would then be in the company of his sister whose custody was with the mother. Further in revision it was held that the father was the natural guardian and that the welfare of the child also demanded that he should be in the custody of his father especially as the child himself also showed an inclination to stay with the father
Re.: 1989 (38) DLT 137
5. In Shailaja J. Erram v. Jayant V. Erram, once again the same question was decided by a Bench of the Bombay High Court in the same manner. In this case the mother was a working woman and remained outside the home until 4 p.m. The minor - a son - expressed his desire to reside with his father. The Court found that the minor was getting his education properly and that the aged parents of the father were in a position to look after the minor for the whole of the day. In these circumstances the Court came to the conclusion that the welfare of the minor demanded that he should be with the father and his family and not with the mother.
Re.: 1990 (2) Mah LR 492
1. In Shoib @ Shebu v. Sabir Ali the Allahabad High Court while conceding the entitlement of the mother the custody of her male child until he has completed the age of seven years held that the welfare of the child would be kept in view before deciding the custody. In that case in fact the son who was only 4 years of age was allowed to remain with the father and the Court without arriving at any adverse conclusions regarding the mother's character or conduct decided that it was in the paramount interest of the 4 year old son to allow him to remain with the father and the father's family.
Re.: 1986 (II) DMC 505 at 506 (All, HC)
2. In Bilkis w/o Munne Khan v. Munne Khan, a Mohammedan wife who was living separately from her husband filed a petition for custody of her minor son aged about 2 1/2 years. It was found that she was residing at a distance from the husband's home and neglecting the child even when their relations were cordial. On these facts the court held that it was not in the interest of the welfare of the child though the child was of tender years to give his custody to the wife. Custody of the child therefore was given to the father.
Re.: 1987 (32) M.P.L.J. 430
3. In Y. Varalakshmi v. Kanta Durga Prasad, the Division Bench of the Andhra Pradesh High Court gave custody of 5 year old boy to the father in the interests of the child. The child had been happily residing with the father and his parents when the mother had applied for custody. The trial court refused custody to the mother and the appeal court upheld the refusal.
Re.: (1989) 1 DMC 379
4. In Lekh Raj Kukreja v. Smt Raymon, the Court was concerned with the question of the interim custody of a minor male child aged 11 years. The trial court gave the custody to the mother on the ground that the minor son would then be in the company of his sister whose custody was with the mother. Further in revision it was held that the father was the natural guardian and that the welfare of the child also demanded that he should be in the custody of his father especially as the child himself also showed an inclination to stay with the father
Re.: 1989 (38) DLT 137
5. In Shailaja J. Erram v. Jayant V. Erram, once again the same question was decided by a Bench of the Bombay High Court in the same manner. In this case the mother was a working woman and remained outside the home until 4 p.m. The minor - a son - expressed his desire to reside with his father. The Court found that the minor was getting his education properly and that the aged parents of the father were in a position to look after the minor for the whole of the day. In these circumstances the Court came to the conclusion that the welfare of the minor demanded that he should be with the father and his family and not with the mother.
Re.: 1990 (2) Mah LR 492
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