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Dr. V. Sridevi v. Dr. C.S. Mani, (Madras)(DB) : Law Finder Doc Id # 1560429
MADRAS HIGH COURT
Before:- S.Manikumar and M.Venugopal, JJ.
C.M.A. No. 2249 of 2015 M.P. No. 1 of 2015. D/d. 29.04.2019.
Dr.V.Sridevi – Appellant
Dr.C.S.Mani – Respondent
For the Appellant:- Mr.A.Thiyagarajan, Senior Counsel for Mr.L.Chandrakumar, Advocate.
For the Respondent:- Mr.N.G.R.Prasad for M/s.Row & Reddy, Advocates.
Remarriage is not a bar, for the custody of the child – Inter-se rights of parents to have custody of child, is not a matter to be considered by the Courts, in the matter of custody of the child, but it is the paramount interest and welfare of the child.
A. Hindu Marriage Act, 1955 Section 26 Guardians And Wards Act, 1890 Section 19 Hindu Minority and Guardianship Act, 1956 Section 13 Custody of child – Presumption of the Family Court that a boy will be comfortable with his father in adolescent age does not have any basis and such generalised conclusion is unwarranted and not supported by any evidence – Family Court ought to have seen that excepting for two months i.e, just after his birth in April 2004 (when he was an infant) the minor boy had never lived with the respondent/father – Minor boy has been in the care not only of the appellant but also of her family members viz., mother, brother and his family, who have brought up the child from his birth with mutual love and affection – Sudden removal of the child from the present custody would be disadvantageous for the growth of the boy – No concrete reason to consider mother as ineligible for custody – Order of Family Court altering custody, set aside – Appeal allowed.
B. Hindu Marriage Act, 1955 Section 26 Guardians And Wards Act, 1890 Section 19 Hindu Minority and Guardianship Act, 1956 Section 13 Evidence of Psychiatrist on evaluation of child – Importance of – Held, opinion by an expert on the psychological report of the child, should have been considered, for arriving at a decision, as to what, in the best interest of the child, is the paramount consideration – Expert opinion having been called for, by the Court, cannot be simply ignored – In present case, there is no reason, as to why, the Family Court, which had called for a report, did not consider the same, for reversing custody.
C. Hindu Marriage Act, 1955 Section 26 Guardians And Wards Act, 1890 Section 19 Hindu Minority and Guardianship Act, 1956 Section 13 Custody of child – Change in custody – Held, factors to consider while granting custody to mother or father are: (i) paramount interest and welfare of child; (ii) tender age; (iii) gender; (iv) financial position of mother; (v) providing education and physical comforts; (vi) wellbeing of child; (vii) family circumstances of parents; and (viii) wishes of child – Change in custody of minor child without any material change in circumstances is against welfare of minor child.
D. Hindu Marriage Act, 1955 Section 26 Guardians And Wards Act, 1890 Section 19 Hindu Minority and Guardianship Act, 1956 Section 13 Remarriage – Remarriage is not a bar, for the custody of the child – 2006 (13) SCC 555, followed.
Cases Referred :
Anjali Kapoor v. Rajiv Baijal, 2009 (7) SCC 322
Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528 at 665
Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112
Dr.Nithya Vidyaprakash v. B.Suresh Babu, 2010 (5) MLJ 805
Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 3
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1
Gaytri Bajaj v. Jiten Bhalla 2012 (12) SCC 471
Jiten Bhalla v. Gaytri Bajaj, (2009) 111 DRJ 292
Kumar v. Jahgirdar v. Chethana Ramatheertha, 2004 (2) SCC 688
Lekha v. P.Anil Kumar, 2006 (13) SCC 555
Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673 & 678 : AIR 2008 SC 2262
Muthuswami Chettiar v. K.M. Chinna Muthuswami Moopanar, AIR 1935 Madras 195
R.V. Srinath Prasad v. Nandamuri Jayakrishna, (2001) 4 SCC 71 : AIR 2001 SC 1056
Re McGrath (infants), (1893) 1 Ch 143 : 62 LJ Ch 208 (CA)
Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840
S. Soora Reddi v. S. Chenna Reddi, AIR 1950 Madras 306 : (1950) 1 MLJ 33
Samuel Stephen Richard v. Stella Richard, AIR 1955 Madras 451 : 56 Cri LJ 1192
Saraswatibai Shripad Ved v. Shripad Vasanji Ved, AIR 1941 Bombay 103
Sheila B. Das v. P.R. Sugasree, (2006) 3 SCC 62
Sk. Moidin v. Kunhadevi, AIR 1929 Madras 33 (FB)
Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745 : 2001 SCC (Cri) 698
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544 : 1982 SCC (Cri) 505 : AIR 1982 SC 1276
Vikram Vir Vohra v. Shalini Bhalla 2010 (4) SCC 409
Walker v. Walker & Harrison, (1981) New Ze Recent Law 257
S.Manikumar, J. – Aggrieved by order dated 20.07.2015 made in I.A.No.3648 of 2011 in O.P.No.3499 of 2009, on the file of the III Additional Family Court, Chennai, the present appeal has been filed.
- For the sake of convenience, the parties are referred to as father and mother.
- Facts leading to the appeal are as follows:
Marriage between the parties was solemnised on 23.06.2000, as per the Hindu Rites and Customs and it was registered in the Office of the Registrar, Erode. Out of the wedlock, a male child was born. Differences of opinion arose between them and they lived separately from 26.09.2004. Hence, finding that there is no chance of reunion, the Family Court in F.C.O.P.No.3499 of 2009, dated 10.11.2009, has granted a decree of divorce by mutual consent. Custody of the child was given to the appellant-mother. Visitation rights were given to the respondent-father, as follows:
” The first petitioner (mother) shall have the custody of male child Siddarth. The second petitioner (father) shall take the child Sidddarth from 1.11.2009 to March 2010 at 9 a.m and leave the child back with the first petitioner by 7 p.m on alternative Sundays.
From 1.4.2010 to 30.9.2010 the second petitioner shall take the child Siddarth on alternative Saturday evening at 7.p.m and leave the child back with the first petitioner by 7 p.m on Sunday i.e next day.
From 1.10.2010 the second petitioner shall take the child Siddarth on alternative Friday evening at 7 p.m and leave the child back with the first petitioner by 7 p.m on Sunday.
During summer vacation, the second petitioner shall take the child Siddarth for two weeks and have the custody of the child with him for that period and they are free to travel for an holiday.
During Dusshera vacation, the second petitioner shall take the child Siddarth for three days and have the custody of the child with him for that period.
During festival holidays Pongal and Deepavali, the second petitioner shall take the child Siddarth(Alternative year) on the previous day evening and leave the child with the first petitioner on the evening of the following day.
On the birth day of the child, the second petitioner shall take the child Siddarth on the previous day evening and leave the child with the first petitioner on the following day evening. If the birthday happens to be a school working day, the second petitioner should drop the child at the school in the morning itself.”
- According to the respondent-father, mother had failed to adhere to the terms of mutual consent. Since the child was under her control, she has considerable influence on him. She got married in March’ 2010 and from July’ 2010 onwards, she did not allow him to see his son. Hence, he was compelled to send a legal notice on 9.8.2010.
- On 18.09.2010, the appellant-mother sent a reply, stating that father was not visiting the child. Father had no other option, except to file I.A.No.2779/2010 to bring the child, either to Child Care Centre or a common friends place. On 31.01.2011, Family Court directed the appellant-mother to bring the child on 5.2.2011 and on the said date, she brought the child to the Family Court Child Care Centre. It was represented that she was not against the father, seeing the child, but it was the child, who was not willing to go with the father. According to the respondent-father, in an interview, the child expressed his willingness to meet him and hence, the court directed the respondent to bring the child Siddarth to the Family Court Child Care Centre, on every alternative Sundays.
- Thereafter, on 29.3.2011 and 10.4.2011 the child was brought to the Child Care Centre. But on 24.4.2011, mother has failed to bring the child and therefore, the matter was adjourned to 25.6.2011. According to the respondent-father, since the behaviour of the child was not natural, the then Presiding Officer decided to refer the parties to visit Dr.Jayanthi, psychiatrist. Mother met the Doctor with the child. The psychiatrist filed her report on 17.08.2011. Respondent-father has filed his objections to the report. Mother wanted long adjournment, as she was going to United States of America and hence, the case was adjourned to 4.11.2011 and thus, the father could not see the child. However, a direction was issued to bring the child to the Child Care Centre on 22.10.2011. But the same was not done, by giving instructions that the child should not be sent, in her absence. The then Presiding Officer sent a counsellor to facilitate the father to visit the child, at the mother’s parents house. The child willingly came to the father, when the counsellor requested for the child to be produced, after some hesitation, child’s grandmother shadowed the child and the counsellor observed that his heart beat became fast. Then, the father took his son to the car park and spent few minutes with him and handed over gifts to him.
- After the decree of divorce, on 19.11.2011, I.A.No.3648 of 2011 has been filed by the father, to modify the order, dated 10.11.2009 in O.P.No.3499 of 2009, permitting him to take the custody of his son, Siddarth, with visitation rights to the mother. In the supporting affidavit, respondent-father has contended that the appellant-mother had been brain washing the child, because the child was normal with others and was not normal, when it came to the natural father. All this could have been avoided, if the father had the share in the custody of the child. Then the mother filed a transfer petition, on the ground that the then Presiding Officer was biased. Mother has not allowed the father to see the child, as per the decree and she dragged on the proceedings, by saying that she is busy in her profession. Mother had married a person, who has grown up children and it would not be healthy for his son to be brought up in that atmosphere, where the child would not be able to get the same attention, which the father would give. Absolutely, there is no difficulty for him and his parents to take care of the child and also make arrangements to take him to the school and bring him back. It would not be fair for the child, Siddarth, to be with the step father, when the natural father is longing to give full attention and care to the child.
- Denying the averments made in the petition, appellant-mother has contended that the father has no interest to visit the child and he was most irregular in visiting the child. Sometimes, he would not turn up on the scheduled day and he never cared to inform her. For the past three years and more, child Siddarth is reluctant to go and meet the father and in fact, the child refused to go out and talk with him, despite her repeated persuasion to go and meet him and she had no control and influence over the child. She sent a suitable reply, dated 18.9.2010, for the notice issued by the husband on 9.8.2010. In order to harass her, father has filed I.A.No.2779/2010, to bring the child to the Child Care Centre in the High Court Campus or to a common place. She had filed a detailed counter, stating that there is no necessity to modify the terms and conditions of the order.
- The appellant has further submitted that on 05.03.2011, the then Presiding Officer met the child in the chamber on two occasions. After spending sufficient time with the child, he asked the child to be brought to the Child Care Centre, as an interim arrangement to assess the behaviour of the child, in the presence of his father. The child, on hearing that he should see his father, shed tears. However, as advised by the then Principal Judge, the child was brought to the Child Care Centre on 29.3.2011, 10.4.2011 and 24.4.2011 respectively. On 29.3.2011, the child literally cried on seeing his father, even though she was present. For the next two visits, father was alone with the child in the Child Care Centre, the child was requested to talk and play with his father. However, the then Presiding Officer, took judicial notice of the child’s reluctant behaviour with his father, referred the child to a psychiatrist at Children Hospital, Egmore, for psychiatrist test report. After rigorous psychiatrist tests, on personality and diagnostic assessment, the psychiatrist submitted her report to the court directly. The report was apparently in favour of the appellant-mother.
- Mother has further contended that as she had to go to America to attend to some important medical conference and it was very difficult to bring seven years old child to the court in her absence and hence, the child was sent to her parents’ house. Thereafter, she brought the child to the Court on 25.6.2011 and the then Presiding Officer, without giving any opportunity to the child to accustom himself to the court environment, informed the parties that when he asked the child ” whether the mother is preventing him from seeing and talking with the father, the child shook his shoulders in the affirmative”. However, the psychiatrist in the report, has clearly mentioned that same, that whenever the child wanted to avoid any question or not interested to answer the question, he used to shake his shoulders. Appellant has contended that the Presiding Officer has mistook the child’s body language. The then presiding officer had been very lenient towards the father and his counsel, for the reasons best known to him. Therefore, she was constrained to file a transfer petition.
- Appellant in her counter affidavit, has further contended that the child never stayed with the father, except as an infant for two months, ie., from 15.7.2004 to 26.9.2004. During the year 2008-2009, the maximum time spent by the father with the child was for about three hours between 10.00 a.m to 1.00 p.m and that too, for very few visits only. The child refused to go with the father from the last week of March’ 2009, despite persuasion. Even in the Child Care Centre, the child refused to move or talk with his father. On 3.1.2013, when the Presiding Officer spoke to the child alone in the chamber, the child has clearly informed that he is not interested to talk or move with his father and clearly expressed his willingness in clear language to the court that he wants to be with his mother.
- Appellant-mother has further contended that she along with her husband and her son, Siddarth, are living peacefully. Her husband’s children are studying in Australia and Pondicherry respectively and therefore, her the attention and care are exclusively, towards her son, Siddarth only. It was clearly agreed between the parties that mother should be entitled to have permanent custody of the child and father is entitled only for visitation rights of the child, subject to willingness of the child. If the child is not interested to go or see his father, then he has no legal right to force the child to come and live with him. She also cannot be forced the child to go against his wish and will. Welfare of the child is the paramount consideration for deciding the custody, as well as, visitation rights of the child. The petition to modify the decree of divorce, has been filed only to harass the appellant-mother and hence, she prayed to dismiss the petition.
- Before the Family Court, father examined himself as PW1 and marked 18 documents, viz., Ex.P1 – Prescription given by Dr.Lekshmi Vijayakumar, dated 8.8.2013, Exs.P2 to P4 – Letters, dated 10.5.2006, 17.5.2006 & 30.5.2006, sent by the wife to the Advocates of the husband, Ex.P5 – Court certified xerox copy of Fair and Decreetal order in O.P.No.3499/2009, dated 10.11.2009, Ex.P6 – Copy of legal Notice sent by the husband to wife, dated 30.4.2012, Ex.P7 – Reply notice by the wife, to the counsel of husband, Ex.P8 – Copy of notice sent by the husband to the advocate of the wife, dated 14.5.2012, Ex.P9 – Rejoinder notice sent by the wife to the husband, dated 24.5.2012, Exs.P10 & P11 – Personal dairy of the wife, Exs.P12 & P14 – Pendrive, Ex.P13 – Photos of the husband and his family, with minor son Siddarth with parents of the husband, Ex.P15 – Copy of Legal notice sent by the husband to the wife, dated 9.8.2010, Ex.P16 – Copy of notice sent by the wife to the husband, dated 18.9.2010, Ex.P17 – Copy of notice by the husband to advocate of wife, dated 23.9.2010 and Ex.P18 – Copy of legal notice sent by the wife to the husband, dated 7.10.2010. Wife examined herself as RW.1 and marked Ex.R1 – Photo copy of progress report of the child, Siddarth for the period 2010-2011, Ex.R2 – Photo copy of Winner Certificate issued to minor Siddarth regarding football game, Ex.R3 – Photo copy of Winner Certificate issued to Siddarth for basket ball game, Ex.R4 – Photo copy of certificate issued to Siddarth for 7th All India Open Karate Championship and Ex.R5 – Photo copy of Certificate issued to Siddarth during Inter-house culturals 2013-2014.
- On the averments of the parties, two points, raised by the Family Court, are as follows:
“(1) Whether the petitioner is entitled to get relief as prayed in the petition filed for custody of his minor child Siddarth ?
(2) To what relief the petitioner is entitled?”
- The IIIrd Additional Family Court, Chennai, in I.A.No.3648 of 2011 in O.P.No.3499 of 2009, dated 20.07.2015, has passed the following orders,
“The factom of dissolution of marriage by mutual consent is admitted by both the parties. In the decree of mutual consent itself both parties agreed for certain terms regarding custody and visitation of the child. Petitioner contented that respondent failed to comply the terms and conditions laid down in the decree, hence petitioner is forced to file petition for visitation right that is to visit the child in the Child Care Centre and even after that petition also respondent failed to permit the petitioner to visit the child as per the order the court hence petitioner is constrained to file this petition. Respondent contented that the child does not want to go with the father as per the terms and conditions of the decree, respondent never stand on the way of the petitioner to visit the child, and with a view to harass the respondent petitioner has filed this petition.
- This petition is filed to modify the custody and visitation rights stated in the fair and decreetal order for divorce by mutual consent. Since the petitioner has come forward with this petition to modify the custody and visitation right of the child the welfare of the child is the sole and single yardstick deciding custody of minor children and court has to use such yardstick for assessing merits of parties seeking custody. Respondent contented that contracting second marriage cannot disentitled the respondent having custody of the minor son. It is not denied by the respondent that after divorce by mutual consent she got remarriage and her husband is already having two grown up children. The second marriage of the respondent though a factor that cannot disentitle the respondent to the custody of the child yet is an important factor to be taken into account. It may not be appropriate to place the child in a predicament where they have to adjust with their step father with whom admittedly the child had not spent much time.
- Both parties admitted that the age of the minor son is 11 years old at present. So the minor child is nearing his adolecent age. If the child of the petitioner is a girl baby then the female child always needs the help of her mother. Whereas in this petition the child is a boy who is at age of 11 years. Usually the boys when they reaches adolecent age they want to share lot of things with their father as a friend and the father also must treat the male child as his friend. Even though respondent contented that the step father of the minor son is taking care of the boy, considering the status of petitioner the and age and the welfare of the minor son petitioner herein also can give equally good education and affection to the minor child. Furthermore being the biological father petitioner can give more comforts to the minor son. It is not denied by the respondent that petitioner is still not getting married. This is the right age of a boy to be under the care and custody of a father. Hence for the aforesaid reasons and considering the paramount welfare of the minor boy it is held that petitioner is entitled to get modification of the order relating to custody and visitation right and point no.1 is answered accordingly in favour of the petitioner.
- Point No.2.
In the result, petitioner is permitted to take the custody of his minor son Siddarth from the respondent, the respondent herein is directed to handover the custody of minor Siddarth to the petitioner within two months from the date of this order, respondent herein is permitted to visit minor Siddarth on 2nd and 4th Saturday of every month in the Child Care Centre, Family Court, Chennai between 2.00 p.m to 5.00 p.m, the petitioner herein is directed to bring minor Siddarth to the Child Care Centre , Family Court on 2nd and 4th Saturday of every month between 2.00 p.m to 5.00 p.m and the fair order and decreetal order dated 10.11.2009 in O.P.No.3499/2009 is modified accordingly regarding the custody and the visitation right of minor Siddarth and this petition is allowed accordingly. Both parties do bear their own costs.”
- Aggrevied by the abovesaid order, the present appeal has been filed on various grounds.
- Mr.A.Thiyagarajan, learned Senior Counsel for the appellant submitted that the marriage was solemnized on 23.06.2000, child Siddarth, was born on 11.04.2004. Due to difference between the spouses, appellant left the matrimonial home on 26.09.2004. O.P.No.1674 of 2006, was filed the appellant/mother for divorce. Thereafter, O.P.No.3499 of 2009, was filed for divorce, by mutual consent. On 10.11.2009, a decree for mutual divorce was granted, giving custody to the mother, with weekly visitation rights to the father. In June 2010, the appellant got remarried. I.A.No.2779 of 2010 was filed in October’ 2010, to modify the order dated 10.11.2009 and to direct the appellant to bring the child to the Family Court Children Care Centre, Chennai or such other common place, as the Court deems fit.
- Learned Senior Counsel appearing for the appellant further submitted that the Family Court went miserably wrong in not ascertaining the minor boy’s preferences by speaking to him personally. On earlier two occasions, two predecessor Family Court judges called the minor child to the Chambers and ascertained his wishes. On both the occasions, the minor child expressed his disinclination to go with the father. In this connection, the learned Senior Counsel, invited attention to the order passed in IA 2799/2010 dated 19.4.2013.
- Learned Senior Counsel for the appellant further submitted that the minor child was always consistent, in his preferences, and therefore, it was all the more necessary that the Family Court, ought to have called the boy personally and enquired his wishes, before passing any orders, regarding the change in custody. According to him, the Hon’ble Supreme Court of India time and again in various judgments has consistently taken the view that, it is mandatory for the Family Court/Trial court, to speak to the minor child to ascertain his/her wishes and act accordingly.
- Learned Senior Counsel further submitted that the Family Court has miserably failed to take note of the Psychometric Evaluation, which would clearly reveal that the Evaluation was done by an expert doctor, appointed by the court in 2011, at the instance of the respondent/father. The evaluation was carried out, in several sittings, individually, with the minor child and with the parents. Psychometric Evaluation were marked as Exs.C1 and C2. According to the learned Senior Counsel, the said Psychometric Evaluation clearly revealed that the minor child is of above average intellect and quite comfortable in his present surroundings. But the Family Court, did not take note of this crucial evidence which by itself, would establish that the minor child was happy and comfortable with the mother and that there was no need for ordering change in custody. The only reason given by the Family Court for ordering change of custody viz., that the boy child would be comfortable with the natural father, rather than with the mother, which according to the learned Senior Counsel for the appellant/mother, is wholly unsound, illogical and baseless finding and that the said finding is without any legal or factual backing. According to the learned Senior Counsel, the Family Court ought to have duly considered and appreciated the expert report of the Psychometric Evaluation, averments in the counter statement of the appellant-mother, and the minor boy’s clear preferences as recorded by the Family Court, on two previous occasions.
- Learned Senior Counsel for the appellant submitted that ordering change in custody, at this point of time will cause mental and emotional stress to the minor child. Accordig to him, right from his birth, minor child was with the appellant-mother, who has nurtured and brought him up. Therefore, giving due consideration to the evidence on record, the order changing the custody, at the age of 12 years, to the father with whom the minor child, never lived, would cause untold mental strain and stress on the child, and that the same would affect the career of the child.
- According to the learned senior counsel for the appellant even though the child was brought to the family court centre, the child did not interact with the father. Family court judges have seen the child. It is stated that on 05.03.2011, the presiding officer interacted with the child. On 25.06.2011, the presiding officer posed certain questions to the child and subsequently, referred the child for psychological evaluation of the minor Siddharh, then aged 7 years.
- Taking this Court through the report of the Psychiatrist, Mr.A.Thiyagarajan, learned senior counsel submitted that the said expert has made a categorical conclusion that appellant/mother, was not interfering or influencing the child. He further submitted that the said expert has concluded on the basis of several tests and that as per the report, minor Siddarth was not prevented by appellant/mother.
- Mr.A.Thiyagarajan, learned Senior Counsel, took us through the entire report and submitted that child was aware of what he had answered to the querries made by the Psychiatrist and after due psychological evaluation, a detailed report, was submitted to the Family Court. He further submitted that after the report came to be filed, respondent/father filed application in I.A.No.3648 of 2011 to modify the order/decree dated 10.11.2009 in O.P.No.3499 of 2009 permitting him to take the custody of minor Siddarth with visitation rights to the mother. In the said application, respondent/father contended that, during interview by the presiding officer, the child had expressed that his mother did not want the child to see the father, behavior of the child was not normal, mother was brain washing the child and that is why the psychological evaluation was ordered.
- Referring to the counter affidavit filed by the appellant/mother, learned Senior Counsel for the appellant submitted that pursuant to the visitation rights, granted to the respondent/father during the year 2008-09, the maximum time spent by the father, with the child, was about 3 hours between 10 am to 1.00 pm and that too, for very few visits only. According to the appellant, the child refused to go with the father from the first week June, 2009, despite persuasion. The child was brought up by the appellant/mother and her family members alone. Even at the Child Care Centre, the child refused to move or talk with the father. On 03.01.2013, the presiding officer spoke to the child alone in the chamber, in the absence of the parties and their respective counsel, to assess the child preference, but the child had clearly informed the judge that he is not interested to talk or move with the father and thus, clearly expressed that he wanted to be with the mother.
- Mr.A.Thiyagarajan, learned senior counsel further submitted that though the appellant was married to another person, who is a doctor, his children were grown up. Minor Siddarth, her married husband are living peacefully. Elder son of the step father was studying in Australia and the younger one was Pondicherry. At this juncture, he submitted that the younger son was in Nagercoil. Their love, affection and attention was exclusively towards minor son Siddharth and this fact is not disputed. He further submitted that remarriage, by itself, would not disentitle a person from continuing to have the custody of a minor child.
- In support of his contention that the Presiding Officer had examined Minor Siddarth, Mr.A.Thiyagarajan, learned senior counsel drew the attention of this court, to paragraph No.10 of the order made in IA No.2799/2010 in O.P. No.3499/2010 dated 19.04.2013, wherein, the Presiding Officer has recorded as hereunder:
“Even this court could understand that the boy was not inclined to see his father, when this court had a talk to the boy.”
He further submitted that when the Presiding Officer in the year 2013, talked with the child, and ascertained, child was not willing to see his father and thus, there is no change since then.
- Inviting the attention of this court, to the settled legal proposition of law that paramount interest and welfare of the child, should be the consideration of the courts, while deciding the custody of a child, vis-a-vis, the rights of the parents or others, Mr.A.Thiyagarajan, learned senior counsel submitted without giving due consideration to the above, Family Court Judge, Chennai, has passed the order impugned.
- Learned Senior Counsel further submitted that unless there are exceptional circumstances, not conducive to the welfare of the child, there is no reason, to tilt the custody of the child to the respondent. Learned senior counsel further submitted that the conclusion of the Presiding Officer, Family Court, as to the age of the boy and should be under the care and custody of the father, cannot be said to be a valid reason. He further submitted that the learned Judge has included a new proposition that usually boys, when he reach adolescent age, they would share lot of things with their father, and the father also should treat the male child as his friend and therefore, custody has to be reversed, is erroneous.
- According to the learned Senior Counsel, there is no such theory or proposition of law, expressed by the Presiding Officer, Family Court, to order custody to the respondent, in considering the paramount welfare of a male child. He further submitted that the Presiding Officer has failed to consider that mere status of the respondent/father, alone cannot be the reason for reversing custody. According to him, appellant is also a qualified doctor. She can also give good education to the child. Evidence produced before the Family Court would prove that the appellant has provided good education and all comforts. Therefore, the conclusion of the Presiding Officer that being a biological father, respondent can give good education, affection and more comforts, is erroneous, because the same comfort education and affection, have been given by a biological mother, with whom the Minor child, have been living from the date of birth, till the petition was heard and decided i.e. for nearly 11 years, after the birth of the child.
- Placing reliance on the decisions in Kumar V.Jahgirdar v. Chethana Ramatheertha reported in 2004 (2) SCC 688; Sheila B. Das v. P.R.Sugasree reported in 2006 (3() SCC 62; Lekha v. P.Anil Kumar reported in 2006 (13) SCC 555; Mausami Moitra Ganguli v. Jayant Ganguli reported in 2008 (7) SCC 673; Anjali Kapoor v. Rajiv Baijal reported in 2009 (7) SCC 322; Athar Hussain v. Syed Siraj Ahmed reported in 2010 (2) SCC 654; Vikram Vir Vohra v. Shalini Bhalla reported in 2010 (4) SCC 409; Gaytri Bajaj v. Jiten Bhalla reported in 2012 (12) SCC 471, Learned Senior Counsel appearing for the appellant-mother, submitted that the order of the Family Court in I.A.No.3648 of 2011 in O.P.No.3499 of 2009, dated 20.07.2015, requires reversal.
- Mr.N.G.R.Prasad, learned counsel for the respondent/father submitted that the central question to be considered by this court, is the paramount interest and welfare of the child. According to him, the appellant/mother left the matrimonial home within three months from the date of marriage. Child was in continuous custody with the mother. Attitude of the mother was refusal to allow the visitation rights. Mother/appellant was responsible for the hostile attitude of the child and she was brainwashing the child. Changing the attitude of the child is not in the welfare of the child. He further submitted that the then Presiding Officer met the child in his Chambers, on two occasions and tried to assess the child in the presence of his father, child was really interested to see the father and shed tears.
- Inviting the attention of this court to the photographs, learned counsel for the respondent/father that child was happy with the father and his grandparents. Taking this court through the entries in the diary of the appellant, Mr.N.G.R.Prasad, learned counsel for the respondent/father submitted that, even before divorce, appellant/mother had made up her mind to bring up the child, only as a single parent and refused to have not only the child rights, as well as father’s rights. At this juncture, he invited the attention to the diary extracts, wherein, it is stated to be recorded as hereunder:
“Delivery and a possible divorce. The child may be a distraction. It is difficult to tell. I am of course prepared (since October 2003) about the fact. I will be a single parent caring for my child. He wants C.S.Siddhartha. I refused to have his father.”
Referring to the entries in the appellant diary, he further added that the appellant never liked the father, from the incpetion, but denied visitation rights of the respondent/father.
- Inviting the attention of this court to the letter, dated 17.05.2006 of the appellant, learned counsel for the respondent/father submitted that the appellant was restricting, even the number of hours of visitation, ie., only for half an hour and in this context, referred to another letter dated 30.5.2006. According to him, with half an hour time, respondent/father, cannot be expected that love and affection, be developed by the child towards his father/respondent and thus the appellant has been preventing the respondent/father from exercising his visitation rights. According to him, the language in the notices of the appellant is nothing but, a premordial right of exercising right of custody of the child, exclusively with the appellant by herself, to the exclusion of father/respondent. According to him, if natural rights of the child, are restricted, by brainwashing, it is not in the best interest of the child.
- Learned counsel for the respondent/father submitted that the attitude of the appellant/mother, in preventing the father, from exercising his visitation rights, could be deduced and that she has acted, not only detrimental to the interest of the child, but also against the interest of the natural father, and thus created an imbalance between father and child. According to Mr.N.G.R.Prasad, learned Senior Counsel, if the appellant had not violated the custodial rights, or abused her rights over the child, all these things would not have happened. The child would not have changed his attitude and would have continued to have his love and affection of his father, which the father, has.
- According to Mr.N.G.R.Prasad, learned Senior Counsel, it is a pernicious argument that the child would not have love and affection to his father. Learned counsel for the respondent/father further submitted the need to file I.A. No.3648/2011 in O.P. No.3499/2009, was due to the attitude of the appellant, who denied even the visitation rights, brainwashed the child, due to her undue influence, which has manifested in the attitude and change of the child.
- Referring to the report of the Psychiatrist, Mr.N.G.R.Prasad, learned counsel for the respondent/father submitted that though the Psychiatrist has examined mother, respondent/father was not examined. Taking this court through the report, learned counsel for the respondent, submitted that the child was not consistent, he was manipulated, gave certain statements and answers, refuted by his mother, in her presence. In this context, he referred to paragraph No.5 of the report of the psychiatrist. It is also his contention that whenever the child had given some answer, the same was stated to have been refuted by his mother. Thus, according to the learned counsel for the respondent, it could be seen that the mother had constantly checked his answers. He therefore contended that the child had gone to shell and his answers did not reflect, his intelligible preference, to the natural father or to the stepfather. Hence, he contended that this document need not be given weightage, while considering the paramount interest and welfare of the child.
- According to the learned counsel for the respondent/father, the dominant influence on the child is clearly reflected in the document, and thus the child, had gone to shell, when questions relating to natural father were posed. Reiterating that diary entries made by the appellant, as to how she had intended to bring the child, as a single parent, learned counsel for the respondent/father submitted that in the above background, court has to consider, paramount welfare of the child.
- According to the learned counsel for the respondent/father, if the natural rights of the child are restricted by brain washing, visitation rights restricted or prevented, then the same is not in the paramount welfare of the child. Appellant has denied not only the right of the child and natural father. She has virtually divorced the child from his father. He further submitted that detailed objections were made to the Psychiatrist’s report.
- Referring to the judgment of the Hon’ble Supreme Court in Gaurav Nagpal v. Sumedha Nagpal, reported in 2009 (1) SCC 42, learned counsel for the respondent/father submitted that in the said case, the Hon’ble Supreme Court has observed that continued custody would prejudice the mind of the child. According to him, the appellant has not shown, as to how the change in custody is not in the best interest of the child. According to him, the order impugned has reinforced the respondent’s right to custody.
- Placing reliance on the decision in Gaurav Nagpal v. Sumedha Nagpal, reported in 2009 (1) SCC 42, learned counsel for the respondent/father contended that if there is hostile attitude throughout, court has to consider the said fact, in the paramount welfare of the child.
- Referring to section 6 and 13 of the Hindu Minority and Guardianship Act, 1956, learned counsel for the respondent/father submitted that father is the natural guardian of the son. He further submitted that is the appellant is under treatment, for stress, and hypertension.
- Inviting the attention of this court to the averments made in I.A. No.2779/2010 in F.C.O.P. No.3499/2009, Mr.N.G.R. Prasad, learned counsel for the respondent submitted that mother has been procrasting the proceedings, took unnecessary adjournments, did not produce the child, on the pretext of going abroad and did not inform the father/respondent. Her greater influence and dislocation of the child, added pressure on the child to the bonding, towards the natural father. Referring to the intelligent quotient of the child, his answers to the questions posed by the psychiatrist, learned counsel subitted that the child, when posed with questions, relating to natural father, child could not even look at the father, to give reply.
- Learned counsel for the respondent submitted that the judgments relied on the appellant have to be considered on the facts of each case. According to him, Family Court has taken note of the fact that the mother has forsaken the visitation rights. When emotional bonding was snapped by the appellant, the court has to consider all the facts in toto, in the paramount welfare of the child. For the abovesaid reasons, he prayed to sustain the order impugned.
- By way of reply, Mr.A.Thiyagarajan, learned senior counsel for the appellant submitted that whatever the respondent has relied on from the diary, had happened before the date of divorce. That was due to tremendous pressure. The photographs were taken in 2005. According to him, the above have no relevance at all. The respondent was permitted to have visitation rights, which he has flouted. He denied the allegation of poisoning/brain washing the child. Referring to Ex.C1 – Psychological report, learned senior counsel submitted that the child is an intelligent boy, and that there was no need to tutor him. According to him, the child is happy with the appellant and family, and in the best interest of the child, the order impugned has to be reversed.
- Heard the learned counsel for the parties and perused the materials available on record.
- When granting divorce by mutual consent on 10.11.2009, the Family Court has ordered permanent custody of the child to the mother and visitation rights to the father. After three years, I.A.No.3648 of 2011 has been filed for modification, which has been ordered on 20.07.2015. Reasons assigned for conclusion of the Family Court is that usually boys, when they reach their adolescent age, father would treat the child as his friend. Though a contention has been made by the appellant-mother that she, the child’s step-father and the entire family members, are taking care of the child, considering the status and welfare of the child, Family Court has held the the father can also give food, education and affection to the child. Biological father can give more comforts to the child. Family Court has further observed that respondent is still unmarried. Family Court seemed to have addressed the above issues.
- Before adverting into the factual aspects and rival contentions, we deem it fit to consider, what the Courts have held in matters relating to custody of a minor child, when there is dispute between the spouses.
- In Kumar v. Jahgirdar v. Chethana Ramatheertha reported in 2004 (2) SCC 688, the Hon’ble Supreme Court, while considering the interest of the minor child, vis-a-vis, the mother, who had re-married, on the facts and circumstances of the case, given the custody of the female child, on the advent of puberty, on the ground that, at such an age a female child primarily requires a mother’s care and attention. The Hon’ble Supreme Court was of the view that absence of female company, in the house of the father, was a relevant factor in deciding the grant of custody of the minor female child. On the aspect of brainwashing the child, the Hon’ble Supreme Court observed thus,
“12. From the arguments advanced on behalf of the former husband, what we have been able to gather as more important circumstances set up against allowing the wife to retain the custody of the child inter alia are that the wife is remarried to a cricket celebrity and has a style of life which requires frequent foreign tours, exposure to public life and media. There is also a possibility of the child being brainwashed to keep distance from the natural father. On the behaviour of the child during her interviews on two occasions, as has been recorded by the High Court Judges, submission made is that it might have been so due to psychological counselling given to the child. It is stated that during one of her interviews, a psychologist was found to be accompanying her to the court before she, the child, entered the chamber of the Judges for interview. On behalf of the wife, the learned counsel stoutly denied any such happening during hearing in court.
- After hearing the learned counsel appearing for the parties at sufficient length and having bestowed our careful consideration to the observations and conclusions reached by the Family Court and the High Court in their respective judgments, we do not find any ground to substantially upset the judgment of the High Court containing the arrangements made therein for the custody of the child and the rights of visitation granted to the natural father.
- We make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of the mother as parent to be always preferable to the father to retain custody of the child. In our considered opinion, such generalisation in favour of the mother should not have been made. We, however, do not find that the judgment of the High Court is based solely on one consideration that between the two parents, the mother always can claim superior right to retain the custody of the child. The High Court has taken into consideration all other relevant facts and circumstances to come to the conclusion that a female child of growing age needs company more of her mother compared to the father and remarriage of the mother is not a disqualification for it. The conclusion of the High Court seems to be just and proper in safeguarding the interest of the child.”
Hon’ble Apex Court considered the case of a female child and at Paragraphs 17 and 18, held as follows:
“17. Without going into the allegations, counter allegations and misapprehensions expressed against each other, on the paramount consideration of best safeguarding the interest of the child, in our opinion, the judgment of the High Court giving exclusive custody of the child to the mother and visitation rights to the natural father deserves to be maintained with little modification for the following reasons:
- The child is, at present, 9 years of age and on advent of puberty. This is the age in which she requires more care and attention of the mother. Mother, at this age of the child, deserves to continue to keep the custody of the female child. She is reported to have given up her service and is now leading life of a housewife. The progress report of Aaruni from Sophia High School, Bangalore, indicates that she is very good at studies and has a bright educational career.
- It is reported that the wife is presently in the family way. The prospect of arrival of the second child in the family of the wife is another circumstance which would be in favour of the present child.
- The petitioner lives alone with his father. There are no female members living jointly with him although he may have female relations in the city but that would not ensure constant company, care and attention to the female child.
- The petitioner natural father is a busy stockbroker allegedly carrying on his business with the aid of online computer but it cannot be said that in the course of his business, he has not to remain out of residence for attending his office and other business engagements.
- The apprehension expressed against the second husband that he might poison the mind of the child and create ill will towards the natural father is not borne out from the evidence on record. On the contrary, the second husband in his deposition has made statements evincing a very cooperative and humane attitude on his part towards the problem of the estranged couple and the child. We find that apprehension expressed against the second husband is without foundation. The parents of the child have separated by mutual consent without making any vicious allegation against each other. They also agreed under the express terms of the consent decree of divorce to take responsibility of bringing up their child as her joint guardians. This gesture of decency and cooperation in jointly looking after the child has to continue. In this mutual agreement of separated couple, on behalf of the second husband, it is assured to us that he would continue to give his unreserved cooperation and help and would do nothing as to spoil the relationship or intimacy of the child with the natural father.
- The visitation rights given to the natural father, in the present circumstances, also do not require any modification because with the passage of time, the growing child should eagerly wait for the company of her father as a happy and enjoyable moment rather than treat it as a part of empty ritual or duty. To make visitation rights of natural father effective and meaningful for proper growth of the child, active cooperation of both the parents and her stepfather is expected and we hope it would not be found wanting from any one of them.
- Since the mother of the child is now married to a famous cricketer, as and when she leaves the country on tour with her husband during school days or vacation period of the child without taking the child with her, instead of leaving the child to the care and custody of some other member of the family, the custody of the child during her absence from her home shall be given to the natural father.”
- With the above observations and modification, we maintain the judgment of the High Court. The two appeals are, thus, disposed of. As all the parties, before us, are highly educated, cultured, of modern outlook, well-off and having so far conducted themselves decently and courteously towards each other, we hope, in future as well, they will continue the same attitude and conduct for maintaining their cordial relationships and extend full cooperation in safeguarding the interest of the child in the best-possible manner.”
- In Sheila B. Das v. PR.Sugasree reported in 2006 (3) SCC 62, in respect of custody of minor girl, after having obtained the custody of a minor girl child, father did not appear to have neglected the minor or to look after all her needs. The child was happy in his company and was doing consistently well in school. Father was financially stable, and also not disqualified, in any way from being the guardian of the minor child. The child also expressed her preference to be with the father, with whom, she felt more comfortable. Court observed that the interest of the minor child, will be best served, if she remained with the father. Therefore, custody of minor female child was given to the father, as per choice of the child, with the observation that child was highly intelligent, and was in a position to make an intelligent choice. Paragraphs 29 to 31 are extracted hereunder:
“29. Having regard to the complexities of the situation in which we have been called upon to balance the emotional confrontation of the parents of the minor child and the welfare of the minor, we have given anxious thought to what would be in the best interest of the minor. We have ourselves spoken to the minor girl, without either of the parents being present, in order to ascertain her preference in the matter. The child who is a little more than 12 years of age is highly intelligent, having consistently done extremely well in her studies in school, and we were convinced that despite the tussle between her parents, she would be in a position to make an intelligent choice with regard to her custody. From our discussion with the minor, we have been able to gather that though she has no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed us that she had established a very good relationship with her paternal aunt who was now staying in her father’s house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence.
- We have also considered the various decisions cited by the appellant which were all rendered in the special facts of each case. In the said cases the father on account of specific considerations was not considered to be suitable to act as the guardian of the minor. The said decisions were rendered by the Courts keeping in view the fact that the paramount consideration in such cases was the interest and well-being of the minor. In this case, we see no reason to consider the respondent ineligible to look after the minor. In fact, after having obtained custody of the minor child, the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent’s company and has also been doing consistently well in school. The respondent appears to be financially stable and is not also disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials before us and is not sufficient to make the respondent ineligible to act as the guardian of the minor.
- We, therefore, feel that the interest of the minor will be best served if she remains with the respondent but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities.”
- In Sheila B. Das’s case (cited supra), the child, a little more than 12 years of age, was examined. After interacting with the child, the Hon’ble Apex Court came to the conclusion that the child felt more comfortable with the father. In the said case, custody was given to the father, as per the choice of the minor girl. Child was provided good education and taken care of, by the father.
- In Lekha v. P.Anil Kumar reported in 2006 (13) SCC 555, after considering the evidence on record and interviewing the child, the Hon’ble Supreme Court came to the conclusion that for the welfare of the child, custody should be given to the mother and dismissed the original petition of the respondent/father, filed under the Guardians and Wards Act, holding that he is not entitled for the custody of the child. Going through the judgment, we find that the High Court reversed the finding of the trial court and directed to give the custody of the child to the father, without interviewing the child. The High Court also permitted the respondent to take the child to Gulf. After considering the facts and circumstances of the case, the Hon’ble Supreme Court, at Paragraphs 12 to 23, held as follows:
“12. We have carefully perused the orders passed by both the lower courts and of the High Court. The High Court, before setting aside the concurrent finding passed by the courts below, ought to have interviewed the child before coming to a conclusion that for the welfare of the child the custody should be given to the father. Mr Rajan submitted that since the mother has remarried, she would not devote her time for the welfare of the boy and that in the interest of the child, the child should be given in custody only to the father who is not only healthy but also have other facilities to look after the child, his education and welfare.
- We are of the opinion that the remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother. The paramount consideration should be given to the welfare of the child. As already noticed, at the interview, the boy has expressed his willingness and desire to live only with his mother and was admitted by him that the mother will provide him good education. The mother is also drawing pension of Rs. 6000 p.m. and also having land and properties in her name. When the boy says he prefers to live with his mother, we are of the view that it will be beneficial for the boy and his education for a better future. The High Court, in our opinion, erred in allowing the appeal on the ground of remarriage of the appellant without considering the other aspects of the matter. It is a matter of custody of the child and the paramount consideration should be the welfare of the child. It is not in dispute that the boy is living with his mother for the last several years and the separation at this stage will affect the mental condition and the education of the child and considering that the child himself attaches importance to his education if the custody is to be given to the father will now affect his academic brilliance and future.
- The High Court, in our opinion, ought to have seen that the remarriage cannot be taken as a ground for (sic not) giving custody of the child. There is also no finding by the High Court that the remarriage has adversely affected the mental condition of the minor child.
15.Sk. Moidin v. Kunhadevi [AIR 1929 Madras 33 (FB)] was a case of a father, a motor driver, applying for writ of habeas corpus to get custody of his 7-year-aged child. Nobody was available in his house to look after such child. The Full Bench held that the Court has to look to an application under habeas corpus in the interest of the child as being paramount. The Court held that prima facie in the eye of the law, the father is the natural guardian and custodian of the person of his child. But it has been the law for a very long time both in England and in this country that what a court has to look to on applications under habeas corpus is the interest of the child as being paramount.
- In Samuel Stephen Richard v. Stella Richard [AIR 1955 Madras 451 : 56 Cri LJ 1192] the High Court in deciding the question of custody held as follows: (AIR p. 452)
“In deciding the question of custody, the welfare of the minor is the paramount consideration and the fact that the father is the natural guardian would not ‘ipso facto’ entitle him to custody. The principal considerations or tests which have been laid down under Section 17, in order to secure this welfare, are equally applicable in considering the welfare of the minor under Section 25.
The application of these tests casts an ‘arduous’ duty on the court. Amongst the many and multifarious duties that a Judge in Chambers performs by far the most onerous duties are those cast upon him by the Guardians and Wards Act. He should place himself in the position of a wise father and be not tired of the worries which may be occasioned to him in selecting a guardian best fitted to assure the welfare of a minor and thereafter guide and control the guardian to ensure the welfare of the ward-a no mean task but the highest fulfilment of the dharmasastra of his own country.
It is only an extreme case where a mother may not have the interest of her child most dear to her. Since it is the mother who would have the interest of the minor most at heart, the tender years of a child needing the care, protection and guidance of the most interested person, the mother has come to be preferred to others.”
- In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka [(1982) 2 SCC 544 : AIR 1982 SC 1276] this Court held as under: (SCC p. 565, para 17)
“17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the 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.”
- According to the Hindu law, the natural guardian of a minor child is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians.
- The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in S. Soora Reddi v. S. Chenna Reddi [AIR 1950 Madras 306 : (1950) 1 MLJ 33] where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.
- A man in his social capacity may be reckless or eccentric in certain respects and others may even develop a considerable distaste for his company with some justification but all that is a far cry from unfitness to have the natural solace of the company of one’s own children or for the duty of bringing them up in proper manner. Needless to say the respondent husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him properly and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is a responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children.
- However, in the present case, we have to decide in the interest of the child as to who would be in a better position to look after the child’s welfare and interest. The general view that the courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu law, the father is the natural guardian of a minor after the age of six years, the court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the child’s needs and to arrange for his upbringing. It also has to be seen whether in view of his other commitments, the father is in any position to give personal attention to the child’s overall development.
- As indicated hereinbefore, we have spoken to the child who, in our view, is intelligent and appears to be capable of expressing his preference. In fact, he has in no uncertain terms indicated his desire to stay with his mother. His mother’s second marriage, instead of proving to be a disadvantage, has proved to be beneficial for the child who seems to be happy and contented in his present situation and we do not think it would be right to unsettle the same.
- The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the courts to be of relevance in deciding grant of custody of minor children. We are, therefore, inclined to restore the order passed by the Family Court and to give custody of the minor boy to his mother, but as indicated hereinbefore, we do not want the child to grow up without knowing the love and affection of his natural father who too has a right to help in the child’s upbringing. We are of the view that although the custody of the minor child is being given to the mother, the child should also get sufficient exposure to his natural father and accordingly, we permit the respondent to have custody of the child from