NIL RATAN KUNDU & ANR. versus ABHIJIT KUNDU

38. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding un- der the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, m'aintenance and education of minor children, consis- E tently with their wishes, wherever possible.

39. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the 'welfare of the child' and not rights of the parents under a statute for the time being in force. Case Jaw

40. The aforesaid statutory provisions came up for consid- eration before Indian Courts in several cases. Let us deal with G few decisions wherein the courts have applied the principles re- lating to grant of custody of minor children by taking into account their interest and well-being as paramount consideration.

41. In Saraswathibai Shripad v. Shripad Vasanji, ILR 1941 Born 455 : Al R 1941 Born 103; the High Court of Bombay stated; ' -+- NIL RATAN KUN DU & ANR. v. ABHIJIT KUNDU [C.K. THAKKER, J.] "It is not the welfare of the father, nor the welfare of the mother that is the paramount consideration for the Court. It is the welfare of the minor and the minor alone which is the paramount consideration." (emphasis supplied) 'I

42. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court held that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the Court under the Act is the welfare of mi- c nor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian. but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.

43. The Court further observed that merely because there D is no defect in his personal care and his attachment for his chil- dren-which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better E promoted by granting their custody to him. The Court also ob- served that children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modem changed social conditions must yield to the considerations of their welfare as … _ human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the re- quirements of welfare of the minor children and the rights of G their respective parents over them.

44. Again, in Thrity Hoshie Dolikuka v. Hoshiam · Shavaksha Dolikuka, (1982) 2 SCC 544, this Court reiterated t that only consideration of the Court in deciding the question of custody of minor should be the welfare and interest of the mi- nor. And it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide ·what will enure to the benefit and welfare of the child.

45. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698, this Court held that Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes fa- ther as a 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. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42; C Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 sec 6].

46. Recently, in Mausami Moitra Ganguli v. Jayant Ganguli, JT (2008) 6 SC 634, we have held that the first and the paramount consideration is the welfare of the child and not the right of the parent.

47. We observed; "The principles of law in relation to the custody of a ·minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child are predominant consideration. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of th~ case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better …,, financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of al the relevant facts and circumstances, c bearing in mind the welfare of the child as the paramount consideration."

48. In Kirtikumar Maheshanker Joshi v. Pradip Kumar Karunashanker Joshi, (1992) 3 SCC 573, custody of two mi- nor children was sought by father as also by maternal uncle. Mother died unnatural death and the father was facing charge under Section 498-A, Indian Penal Code. Children were stay- ing with maternal uncle. Before this Court, both the children ex- pressed their desire to stay with maternal uncle and not with the father.

49. Considering the facts and circumstances and bearing in mind the case pending against the father and rejecting his prayer for custody and granting custody to the maternal uncle, the Court stated; .. … "After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody fo their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of G his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage".

50. The counsel also invited our attention to decisions of various High Courts. In Tarun Ranjan Majumdar & Anr. v. Siddhartha Datta, AIR 1991 Cal 76, the High Court considered Sections 7, 12 and 25 of 1890 Act. It held that when the Court is of the opinion that some order is required to be passed with B regard to custody of a ward, it can be passed considering the welfare of the ward. It was further observed that even if a child is in the custody of one who has no legal right thereto and its wel- fare is reasonably looked after in a manner in which it should, the legal guardian cannot claim an order of return or recovery of c custody merely on the strength of his legal right or financial soundness.

51. In Bimla Devi v. Subhas Chandra Yadav 'Nirala', AIR 1992 Pat 76, the Court held that paramount consideration should be welfare of minor and normal rule (the father is natural D guardian and is, therefore, entitled to the custody of the child) may not be followed if he is alleged to have committed murder i' ,.., of his wife. In such case, appointment of grand-mother as guard- ian of minor girl cannot be said to be contrary to law.

52. Construing the expression 'welfare' in Section 13 of 1956 Act liberally, the Court observed; "It is well settled that the word 'welfare' used in this section must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being". t (emphasis supplied)

53. In Goverdhan Lal & Ors. v. Gajendra Kumar, AIR 2002 Raj 148, the High Court observed that it is true that father is a G natural guardian of a minor child and therefore has a preferen- tial right to claim custody of his son, but in the matters concern- ing the custody of minor child, the paramount consideration is ' •· the welfare of the minor and not the legal right of a particular party. Section 6 of 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the mi- nor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out wishes of the child as to with whom he or she wants to live.

54. Again, in MK Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315, the Court held that custody cases cannot be decided on documents, oral evidence or precedents without ….. reference to 'human touch'. The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.

55. In Kam/a Devi v. State of Himachal Pradesh, AIR 1987 c HP 34, the Court observed; "(T)he Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions D of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary E comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other" . .. .. Principles governing custody of minor children ·

56. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and com- plex question as to custody of minor, a Court of law should keep G in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal pro- visions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or pro- :… cedure nor by precedents. In selecting proper guardian of a mi- nor, the paramount consideration should be the welfare and well- being of the child. In selecting a guardian, the Court is exercis- ing parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surround- Ne ings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judg- c ment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is condu~ cive to the welfare of the minor. ·~ .. ,.. Orders of Courts below not in consonance with law

57. Having given anxious and thoughtful consideration to the facts of the case and applying well settled principles referred to above, we are constrained to observe that the orders passed by the Courts below are short of the fundamental principles on more than one ground.

58. The approach of both the Courts is not in accordance with law. and consistent with the view taken by this Court in sev- eral cases. For instance, both the Courts noted that the appel- lants (maternal grand parents) are giving 'all love and affection' to Antariksh but that does not mean that Antariksh will not get similar love and affection from his father. It was also observed that appellants no doubt got Antariksh admitted to a well re- puted school (St. Xavier's Collegiate School, Kolkata). But it t … could not be said that the father will not take personal care of his son. Both the Courts also emphasized that the father has right to get custody of·Antariksh and he has not invoked any G disqualification provided by 1956 Act.

59. We are unable to appreciate the approach of the Courts below. This Court in catena of decisions has held that the controlling consideration governing the custody of children H is the welfare of children and not the right of their parents.

60. In Rosy Jacob, this Court stated; "The contention that if the husband (father) is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly may at times be somewhat misleading". "!'·

61. It was also observed that the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the rel- evant circumstances. The father's fitness cannot override con- siderations of the welfare of the minor children. c

62. In our opinion, in such cases, it is not the 'negative test' that the father is not 'unfit' or disqualified to have custody of his son/daughter is relevant but the 'positive test' that such cus- tody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant D or refuse custody of minor in favour of father, mother or any other guardian.

63. Though this Court in Rosy Jacob held that children are not mere chattels nor toys, the trial Court directed handing over E custody of Antariksh 'immediately' by removing him from the custody of his maternal grand-parents. Similarly, the High Court, which had stayed the order of the trial Court during the pen- dency of appeal ordered handing over Antariksh to his father within twenty four hours positively We may only state that a child is not 'property' or 'commodity'. To repeat, issues relating _,. to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem.

64. At another place, the trial Court noted that a criminal G case was pending against the father but the pendency of the case did not ipso facto disqualify him to act as the guardian of Antariksh.

65. The Court stated; "If ultimately the petitioner (father) is convicted and sentenced in that case, the OPs (maternal grand- parents of Antariksh) will have the scope to inform the fact to the Court and to pray for change of the Court's decision".

66. The Court made a 'comparative study' and observed that it had 'no hesitation' in holding that the present and future of Antariksh would be better secured in the custody of his father.

67. It then stated; "Antariksh should be, therefore, immediately removed from the custody of OPs (Maternal grand-parents) to the custody of the petitioner (father)". c (emphasis supplied)

68. The appellants herein challenged the decision of the trial Court by approaching the High Court. With respect, the High Court also committed the same error by not applying correct principle and proper test of welfare of minor (Antariksh) as the paramount consideration. It, no doubt, referred to the principle, but held that the trial Court was right in handing over custody of Antariksh to the father.

69. The High Court then proceeded to state; "We have gone through the evidence adduced by both sides and also heard the child in order to decide the question of the welfare·of the said child. During our conversation with the child we have observed with great anxiety that the child has been tutored to make him hostile towards his father. In this connection it is worth mentioning here that the learned Court below also held that the O.P's wanted to wipe out the existence and identity of father from the mind of the petitioner's son and if it so, then it may be disastrous ' for the future of the petitioner's son". (emphasis supplied)

70. We are sorry to say that there is no material on record as to on what basis the above inference was drawn or opinion was formed by the High Court.

71. Now, it has come in evidence that after death of Mithu A (mother of Antariksh) and lodging of First Information Report by her father against Abhijit (father of Antariksh) and his mother (paternal grand mother of Antariksh), Abhijit was arrested by police. It was also stated by Nil Ratan Kundu (father of Mithu) y that mother of accused Abhijit (paternal grand mother of 8 Antariksh) absconded and Antariksh was found sick from the house of Abhijit.

72. In our considered opinion, on the facts and in the cir- cumstances of the case, both the Courts were duty bound to consider the allegations against the respondent herein and c pendency of criminal case for an offence punishable under Sec- tion 498A, IPC. One of the matters which is required to be con- sidered by a Court of law is the 'character' of the proposed -I guardian. In Kirit Kumar, this Court, almost in similar circum- stances where the father was facing the charge under Section D 498-A, IPC, did not grant custody of two minor children to the father and allowed them to remain with maternal uncle. Thus, a complaint against father alleging and attributing death of mother and a case under Section 498-A, IPC is indeed a relevant fac- tor and a Court of law must address to the said circumstance E while deciding the custody of the minor in favour of such per- son. To us, it is no answer to state that in case the father is convicted, it is open to maternal grand parents to make an ap- propriate application for change of custody. Even at this stage, the said fact ought to have been considered and appropriate F order ought to have been passed.

73. As already noted, Antariksh was aged six years when the trial Court decided the matter. He was, however, not called by the Court with a view to ascertain his wishes as to with whom he wanted to stay. The reason given by the trial Court was that G none of the parties asked for such examination by the Court.

74. In our considered opinion, the Court was not right. Apart from statutory provision in the form of sub-section (3) of Section 17 of 1890 Act, such examination also helps the Court in per- forming onerous duty, in exercising discretionary jurisdiction and in deciding delicate issue of custody of a tender-aged child. Moreover, the final decision rests with the Court which is bound to consider all questions and to make an appropriate order keeping in view the welfare of the child. Normally, therefore, in custody cases, wishes of the minor should be ascertained by :'( – the Court before deciding as to whom custody should be given.

75. Before about a century, in Anni Besant (Mrs.) v. G Narayaniah &Anr., 41 IA314 :AIR 1914 PC 41, under an agree- ment, custody of two minor sons was with the mother who was c staying in England. The father who was residing in Madras, in- stituted a suit for custody of his sons asserting that he was the natural guardian of the minors and was entitled to have custody of both his sons. The trial Court decreed the suit which was confirmed by the High Court.

76. The Judicial Committee of the Privy Council held that under the Hindu Law, the father was th.e natural guardian of his children during their minority. But it was stated that the infants did not desire to return to India and no order directing the de- fendant mother to send minors to India could have been lawfully made by an Indian Court.

77. Upholding the contention, allowing the appeal and dis- missing the suit, their Lordships observed that it was open to the plaintiff-father to apply to His Majesty's High Court of Jus- tice in England for getting custody of his sons. "If he does so the interests of the infants will be considered, and care will be taken to ascertain their own wishes on all material prints." (em- phasis supplied) Since it was not done, the decree passed by both the Courts was liable to be set aside.

78. We may, however, refer at this stage to a submission of the learned counsel for the respondent-father. Referring to Thrity, the counsel contended that this Court held that the Court is not bound to interview the child. In that case, this Court did not interview the minors and did not ascertain their wishes. It H was, therefore, submitted that it cannot be said that non-exami- nation of Antariksh or failure to ascertain his wishes by the trial A Court was illegal or unlawful and vitiated the order.

79. We are unable to agree with the learned counsel. We have closely gone through Thrity. Reading the decision as a whole makes it amply clear that on the facts of the case, this Court felt that calling minor children frequently in a Chamber by Judges was not proper and such interviews really disturbed them rather than giving them a respite and relief.

80. This Court reproduced some of the observations of learned Judges of the High Court who had interviewed the mi- c nors. The Court also considered sub-section (3) of Section 17 of 1890 Act and the power of the Court to interview a minor child with a view to consider his/her preferences and observed; "We may, however, point out that there cannot be any manner of doubt as to the Court's power of interviewing any minor D for ascertaining the wishes of the minor, if the Court considers it so necessary for its own satisfaction in dealing with the question relating to the custody of the minor".

81. Considering the facts of the case, however, the Court E refused to undertake that exercise and stated; "In the facts and circumstances of this case we are however, not inclined to interview the minor daughter, as we are satisfied in the present case that the minor is not fit to form an intelligent preference which may be taken F into consideration in deciding her welfare. We have earlier set out in extenso the various orders passed by the various learned Judges of the Bombay High Court after interviewing the minor and the learned Judges have recorded their impressions in their judgments and orders. G The impressions as recorded by the learned Judges of the Bombay High Court, go to indicate that the minor has -f expressed different kinds of wishes at different times under different conditions. It also appears from the report of the Social Welfare Expert that these interviews cast a gloom [2008] 11 $.C.R. -'\- on the sensitive mind of the tender girl and caused a lot of strain and depression on her. Torn between her love for both her parents and the acrimonious dispute between them resulting in the minor being dragged from court to court, we can well appreciate that the sensitive mind of the minor girl is bound to be sadly affected. Though the girl is quite bright and intelligent as recorded by the learned Judges of the Bombay High Court iri their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarrassing situation c because of the unfortunate relationship and litigation between her parents for both of whom she has great deal of affection, she is not in a position to express any intelligent preference which will be conducive to her interest and welfare. Mature thinking is indeed necessary in such a situation to decide as to what will enure to her benefit and welfare. Any child who is placed in such an unfortunate position, can hardly have the capacity to express an intelligent preference which may require the Court's consideration to decide what should be the course to be adopted for the child's welfare. The letters addressed by the daughter to her mother from Panchgani and also a letter addressed by her to her aunt (father's sister) also go -to show that the minor cannot understand her own mind properly and cannot form any firm desire. We feel that sending for the minor and interviewing her in the present case will not only not serve any useful purpose but will have the effect of creating further depression and demoralisation in her mind". (emphasis supplied)

82. From the above observations and particularly the itali- cized portion, it is abundantly clear that in peculiar facts and circumstances of the case, this Court was satisfied that calling a minor girl and interviewing her several times had not only not i,. served any useful purpose but had the effect of creating further H depression and demoralization in her mind.

83. In the instant case, on overall considerations we are A convinced that the Courts below were not right or justified in granting custody of minor Antariksh to Abhijit-respondent herein without applying relevant and well-settled principle of welfare of the child as paramount consideration. The trial Court ought to have ascertained the wishes of Antariksh as to with whom he B wanted to stay.

84. We have called Antariksh in our chamber. To us, he appeared to be quite intelligent. When we asked him whether he wanted to go to his father and to stay with him, he unequivo- cally refused to go with him or to stay with him. He also stated C that he was very happy with his maternal grand-parents and would like to continue to stay with them. We are, therefore, of the considered view that it would not be proper on the facts and in the circumstances to give custody of Antariksh to his father- respondent herein.

85. For the foregoing reasons, the appeal deserves to be allowed and is accordingly allowed. The application filed by the respondentAbhijit for custody of his son Antariksh is ordered to be dismissed. In view of the facts and circumstances of the case, however, there shall be no order as to costs. K.K.T. Appeal allowed.