V. Jahgirdar Vs. Chethana Ramatheertha  Insc 55 (29 January 2004)
V. Patil & D.M. Dharmadhikari. Dharmadhikari J.
these two appeals, the subject matter of dispute between the married couple,
now separated by decree of divorce obtained on mutual consent under the
provisions of Hindu Marriage Act, 1955, is their rival claim to the exclusive
custody of their daughter Aaruni who is now little above 9 years of age and is
prosecuting her education in a well-known school in the city of Bangalore where
the parties reside.
obtaining divorce on mutual consent, the wife Smt. Chethana Ramatheertha is
re-married to Mr. Anil Kumble, a Cricketer of national and international
repute. The Family Court of Bangalore by its judgment dated 20.4.2002, after
considering the evidence led by the parents of the child, came to the
conclusion that as the wife is re- married to a famous cricketer and is leading
a different style of life involving frequent tours with her second husband for
attending cricket events, there is likelihood of child developing distance and
dislike for her natural father. The exclusive custody of the child was directed
to be given to the natural father with only right of visitations to the mother
on every week on Sunday between 10 A.M. to 8 P.M. and to keep the child with her overnight on two Sundays in
a month with prior intimation to her former husband.
High Court, in appeal, by its impugned judgment dated 27.1.2003, has, however,
taken a different view and reversed the judgment of the Family Court. On the
basis of evidence on record, the Division Bench of High Court has formed an
opinion that in the absence of compelling reasons and circumstances, the mother
cannot be deprived of the company of the child to the detriment of the interest
of the child. The High Court, therefore, set aside the judgment of the family
court and directed that the mother should continue to retain exclusive custody
of the child with visitation rights to her former husband. The former husband
is allowed to keep the child on week ends either on Saturday or Sunday from
morning till evening and he can also be with the child during half the period
of vacations in the school. The stay of child with each of them during half of
the vacations, is to be shared by the two parents under mutual agreement. The
father is also allowed to visit the child as and when he likes with the prior
intimation and mutual arrangements with the mother. The parties are also given
liberty to seek necessary modifications in the arrangement evolved by the High
deciding the controversy regarding the custody of the child, only few more
facts are relevant and required to be stated.
parties were married in the year 1986 at Mysore and had a married life for more than 12 years. The child Aaruni was
born to them on 07.12.1994. When the child was little about two years old, the
wife took a job in Trans Oceanic Travels. Their marriage broke down in the year
1998 when the wife left her matrimonial home and sent a notice through her
lawyer that she was unwilling to live with her husband. On a joint petition,
filed by the parties in the Family Court for dissolution of marriage by mutual
consent, a decree of divorce was passed on 17.4.1999. The separated parents, in
accordance with the conditions of divorce by consent, agreed to their
appointment as joint guardians with periodic custody of the child. They also
agreed to keep the child alternatively in every week. As per the mutual
arrangement agreed between the couple, the wife took custody of the child for a
week in the year 1999. She soon thereafter got re-married to famous cricketer Mr.
Anil Kumble on Ist July, 1999 and went out of the country with her second
husband leaving the child under the custody of her former husband. On return
from abroad with her second husband, she filed an application in the Family
Court on 12.8.1999 seeking exclusive custody of the child. The Family Court
rejected her application and the High Court, in revision, only granted liberty
to the parties to approach the Family Court for alteration or modification of
the terms of consent decree of divorce. Thereafter, the wife moved a petition
again to the Family Court for altering the conditions of divorce.
pendency of those proceedings, with the permission of the Family Court, she
took the child with her while on tours with her second husband.
counter application was filed by the present petitioner/her former husband Shri
Kumar V. Jahgirdar for exclusive custody of the child on the ground that he
being the natural guardian and having remained unmarried with sole aim to bring
up the child in congenial atmosphere was better suited to be entrusted with her
custody. It was stated that the re-marriage of the wife is detrimental to the
welfare of the child.
wife from her side filed repeated applications in Family Court seeking
permission to take the child to foreign countries on tours with her second
husband. The Family Court granted such permissions but on certain conditions.
wife went up by revision petition to the High Court and the High Court directed
that the child should be placed in the custody of mother for a continuous
period of one year. When the present petitioner/her former husband appealed,
this Court, after hearing the learned counsel appearing for the parties, by
order dated 18.4.2003 made an interim arrangement pending final orders on the
pending applications of the parties before the Family Court, Bangalore. The
mother was allowed to retain custody of the child with visitation rights
granted to the former husband every week on Saturday and Sunday.
also directed that during pendency of the cases before the family court, if the
mother is required to go out of the country, she will not carry the child with
her but leave the child in the custody of her former husband during her
absence. The family court was directed to decide the case within four months.
family court in its judgment dated 20.4.2002 granted exclusive custody of the
child to the former husband with only right of weekly visitations to the mother
on the grounds inter alia that the mother is re-married to a famous cricketer
whereas the former husband is still unmarried and his nature of business as a
Stock Broker is such that he is able to give required attention to the rearing
of the child. The family court also, on the basis of apprehensions raised in
evidence on behalf of the former husband, came to the conclusion that custody
of child with natural father would rule out possibility of attempts on the part
of the mother and her second husband to induce or create ill-will in the mind
of the child towards her natural father. The family court also recorded that
during long periods when the girl child lived with her natural father, she
herself expressed satisfaction and happiness.
wife appealed against the judgment of the family court to the High Court. The
child was interviewed twice by the Hon'ble Judges of the High Court on
20.11.2002 and 05.12.2002. On the basis of interviews with the child who is
school going and aged about 9 years, the High Court recorded in its judgment
that the child expressed no dislike or negative feelings towards any of her
natural parents or her step father. The High Court after examining the evidence
on record and interviewing the child, came to the conclusion that in the
absence of any compelling or adverse circumstances, the natural mother cannot
be deprived of the exclusive custody of a growing female child.
judgment of the family court has been upset by giving exclusive custody of the
child to the natural mother with visitation rights on week ends to the natural
father on timings mentioned in the order.
by the order of the High Court, the former husband is, in appeal, before us.
senior counsel, Shri S.S. Javali appearing on behalf of the petitioner/former
husband took great pains by taking us through the record of the case and
particularly the relevant parts of the depositions of the estranged couple and
the second husband of the wife. He severely criticised certain general remarks
and statements made by the High Court in the impugned judgment such as that
'mother has an absolute right to keep company of the child unless deprivation
of it is required for compelling reasons'. It is argued that such an erroneous
approach on the part of the High Court, has resulted in upsetting a just and
very well-reasoned judgment of the family court.
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 re-married to a
cricket celebrity and has a style of life which requires frequent foreign
tours, exposure to public life and media. There is also possibility of the
child being brain-washed 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 child entered the Chamber of the Judges for interview. On behalf of
the wife, the learned counsel stoutly denied any such happening during hearing
behalf of the former husband, learned counsel then very strenuously submitted
that his client has remained unmarried with one single aim to rear and bring up
his child in a congenial atmosphere of love and affection which he alone can
guarantee. In the present status and style of life of his former wife, it is
submitted that the former husband was rightly held by the family court to be a
preferable parent to keep custody of the child. The father is also financially
well-off and has already acquired movable and immovable properties as also
deposited cash in the name of the child to ensure best of care and education to
have also heard learned senior counsel, Shri Gopal Subramanium appearing on
behalf of the wife, who has supported the impugned judgment of the High Court
and submits that the past conduct of the wife and her second husband throughout
the proceedings in these cases belies the apprehension of the former husband
that the child's mind would be poisoned against him. The apprehension is stated
to be completely baseless and imaginary.
counsel assures on behalf of Mr. Anil Kumble, the second husband of the wife,
that he would continue to extend same love to the child and cooperation to the
natural parents as he has been doing throughout in the past so that the child
gets the best of care, affection and education for her proper upbringing. It is
submitted that as has been desired by the High Court with the conditions
imposed in its orders, the parties would faithfully and sincerely continue with
the existing arrangement without any detriment to their mutual interests and
the interest of the child.
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 judgement 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.
make it clear that we do not subscribe to the general observations and comments
made by the High Court in favour of mother as parent to be always a 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 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 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
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 judgement 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 :-
child is, at present, 9 years of age and on advent of puberty.
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 now leading life
of a house-wife. The progress report of Aaruni from the Sophia High School, Bangalore, indicates that she is very good at
studies and has a bright educational career.
is reported that the wife is presently on 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.
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.
petitioner/natural father is a busy Stock Broker allegedly carrying on his
business with aid of on-line 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.
apprehension expressed against the second husband that he might poison the mind
of the child and create ill-will towards 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 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.
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 his 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 step father
is expected and we hope it would not be found wanting from any one of them.
Since the mother of the child is 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, in stead 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
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 same attitude and conduct for maintaining
their cordial relationships and extend full cooperation in safeguarding the
interest of the child in best possible manner.
to the nature of the case and the position of the parties, they are directed to
bear their own costs and expenses incurred in these appeals.