B. Das Vs. P.R. Sugasree  Insc 83 (17 February 2006)
Singh & Altamas Kabir Altamas Kabir,J.
appellant, who is a paediatrician by profession, was married to the respondent,
who is a lawyer by profession, on 29th March, 1989, at Thrissur in Kerala under the
provisions of the Special Marriage Act. A girl child, Ritwika, was born of the
said marriage on 20th
will appear from the materials on record, the appellant, for whatever reason,
left her matrimonial home at Thrissur on 26th February, 2000, alongwith the child and went to Calicut without informing the respondent.
on coming to learn that the appellant was staying at Calicut, the respondent moved an
application in the High Court at Kerala for a writ in the nature of Habeas
Corpus, which appears to have been disposed of on 24th March, 2000 upon an undertaking given by the appellant to bring the
child to Thrissur. On 24th March, 2000, the respondent, alleging that the minor
child had been wrongfully removed from his custody by the appellant, filed an
application before the Family Court at Thrissur under Sections 7 and 25 of the
Guardians and Wards Act, 1890, and also Section 6 of the Hindu Minority and
Guardianship Act, 1956, which came to be numbered as OP 193 of 2000 and OP 239
taking up the said two applications for disposal, the learned Judge of the
Family Court at Thrissur took up the respondent's application for interim
custody of the minor child and on 27th April, 2000 interviewed the minor child in
order to elucidate her views with regard to the respondent's prayer for interim
custody. No order was made at that time on the respondent's application for
interim custody. On 20th
March, 2001, the
learned Judge of the Family Court at Thrissur took up the two applications
filed by the respondent under Sections 7 and 25 of the Guardians and Wards Act
and under Section 6 of the Hindu Minority and Guardianship Act for final
disposal. While disposing of the matter the learned Judge had occasion to interview
the minor child once again before delivering judgment and ultimately by his
order of even date the learned Judge of the Family Court at Thrissur allowed
the applicati16ons filed by the respondent by passing the following order:-
respondent is directed to give custody of the child to the petitioner the
father of the child, the natural guardian immediately after closing of the
schools for summer vacation.
The father shall
take steps to continue the study of the minor child in CSM Central School Edaserry
and steps to restore all the facilities to the minor child to enjoy her extra
curricular activities and studies also.
mother is at liberty to visit the child either at the home of the petitioner or
at school at any time.
If the mother
respondent shifts her residence to a place within 10 kms. radius of the school
where the child is studying the child can reside with the mother for not less
than three days in a week. The petitioner father shall not, object to taking of
the child by the mother to her own house in such condition.
The father the
petitioner shall meet all the expenses for the education, food and cloths etc.
of the minor child and the mother of her own accord contribute to the same
anything for the child and the father should not prohibit the mother from
giving the child anything for her comfort and pleasant living.
If the mother
the respondent fails to stay within 10 kms. radius of the CSM central School, Edasserry
however she is entitled to get custody of the child for 2 days in any of the
weekend in a month and 10 days during the Summer vacation and 2 days during the
Onam hoilidays excluding the Thiruvonam day.
for custody is made on the basis of the prime consideration for the welfare of
the minor child and in case there is any change in the situation or
circumstance affecting the welfare of the minor child, both of the parties are
at liberty to approach this court for fresh directions on the basis of the
changed circumstance. OP 239/2000 is partly allowed prohibiting the respondent
husband by a permanent injunction from removing or taking forcefully the
"B" schedule articles mentioned in the plant. The parties in both
these cases are to suffer their costs." Being dissatisfied with the order
of the Family Court, the appellant herein filed an appeal in the High Court of Kerala,
being M.F.A.No.365/01, wherein by an order dated 21st May, 2001, the order of the Family Court was stayed. The respondent
thereupon filed an application before the High Court for review of the said
order and in the pending proceedings, a direction was given by the High Court
to the Family Court at Calicut to interview the minor child. The
report of the Family Court was duly filed before the High Court on 5th July, 2001.
the said report, a copy of which has been included in the paperbook, it is
evident that the minor child preferred to stay with her father and ultimately
by its order dated 25th
July, 2001 the High
Court vacated the stay granted by it on 21st May, 2001.
application of the appellant herein, one Dr. S.D. Singh, Psychiatrist, was also
appointed by the High Court on 14th September, 2001, to interview the appellant and the respondent in order to make a
psychological evaluation and to submit a report. On such report being filed,
the High Court by its order dated 31st May, 2002, granted custody of the minor child
to the respondent till the disposal of the appeal.
thereafter, in June 2002, the respondent filed an application for divorce
before the Family Court at Thrissur. While the same was pending, the appellant
filed a Special Leave Petition being S.L.P.( C) C.C.No.6954/2002 against the
order of the High Court granting custody of the minor child to the respondent
till the disposal of the appeal. The said Special Leave Petition was dismissed
on 9th September, 2002. The appeal filed by the appellant
before the High Court against the order of the learned Judge of the Family
Court allowing the respondent's application under Sections 7 and 25 of the
Guardians and Wards Act, being M.F.A. No.365/01, was also dismissed on 16th
June, 2003. Immediately, thereafter, on 28th June, 2003, the Family Court granted divorce
to the parties.
aggrieved by the dismissal of her appeal, being M.F.A.No.365/01, the appellant
herein filed the instant Special Leave Petition, being SLP ) No. 18961/2003,
which after admission was renumbered as Civil Appeal No.6626/2004. On 20th July, 2004, the appellant herein filed a
petition in the pending Special Leave Petition for interim visitation rights in
respect of her minor child for the months of August and September, 2004. After
considering the submissions made by the appellant, who was appearing in person,
and the learned counsel for the respondent, this Court passed the following order:-
"This petition has been filed by the mother of minor girl-Ritwika, aged
about 12 years, challenging the impugned order of the High Court dated 16th June, 2003.
impugned order the High Court confirmed the order of the Family Court holding
that it is in the best interest of the child that she be in the custody of the
father. The High Court, however, permitted the petitioner to visit the child at
the house of the father once in a month, that is, first Sunday of every month
and spend the whole day with the child there with a further stipulation that
she will not be removed from the father's house. The petitioner and the
respondent have not been living together since February, 2000. The divorce
between them took place by order dated 26th June, 2003.
question of interim custody, in terms of the order dated 30th April, 2003, the
Family Court Trichur, was directed to make an order regarding the visitation
rights of the petitioner for the months of May, June and July, 2004 so that the
petitioner may meet her daughter at the place of some neutral person and, if
necessary, in the presence of a family counsellor or such other person deemed
just, fit and proper by the Family Court.
Family Court was directed to fix any two days, in months of May, June and July
of 2004, considering the convenience of the parties, when the petitioner may be
in a position to spend entire day with her child.
to the above said order the Family Court had fixed two days in the months of
May, June and July, 2004 so that the petitioner could meet her daughter on
those days. The Family Court directed that the said meeting shall take place in
the room of family counsellor in Court precincts. According to the petitioner
the said arrangement was not satisfactory, so much so that ultimately she made
a request to the Family Court that instead of meeting her daughter in the room
of the family counsellor, the earlier arrangement of meeting her at father's
house was may be restored. The Family Court, however, did not modify the order
having regard to the orders passed by this Court on 30th April, 2004. It is, however, not necessary at this stage to delve any
further on this aspect.
is studying in 7th class in a school in Trichur. Having heard
petitioner-in-person and learned counsel for the respondent and on perusal of
record, we are of the view that without prejudice to parties' rights and
contentions in Special Leave Petition, some interim order for visitation rights
of the petitioner for the months of August and September, 2004 deserves to be
passed. Accordingly, we direct as under:
can visit the house of the respondent at Trichur on every Sunday commencing
from 1st August, 2004 and be with Ritwika from 10.00 a.m. to 5.00 p.m.
During the stay of the petitioner at the house of the respondent, only the
widowed sister of the respondent can remain present. The respondent shall not
remain present in the house during the said period. It would be open to the
petitioner to take Ritwika for outing, subject to the condition that Ritwika
readily agrees for it. We also hope that when at the house of the respondent,
the petitioner would be properly looked after, insofar as, normal facilities
and courtesies are concerned;
We are informed
that the school in which Ritwika is studying shall be closed for 7 days in the
month of August, 2004 during Onam festival. It would be open to the petitioner
to take the child for outing during those holidays for a period of three days.
After the expiry of three days, it will be the responsibility of the petitioner
to leave the child at the house of the respondent.
arrangement about meeting on every Sunday would also continue in the month of
the matter on 5th October, 2004" The question relating to the appellant's
visitation rights pending decision of the Special Leave Petition came up for
consideration before this Court again on 5th October, 2004, when on a reference
to its earlier order dated 20th July, 2004, this Court further directed that
the appellant would be at liberty to move appropriate applications in
M.F.A.No.365/01, which had been decided by the High Court on 16th June, 2003,
and the High Court on hearing the parties or their counsel would pass such
orders as it considered appropriate in respect of the interim custody of Ritwika
during the Christmas Holidays. It was also clarified that till the matter was
finally decided by this Court, it would be open to the appellant to make
similar applications before the High Court which would have to be considered on
its own merits, since it was felt that the High Court would be in a better
position to consider the local conditions and pass interim orders including
conditions, if any, required to be placed on the parties.
mentioned hereinbefore, on leave being granted, the Special Leave Petition was
renumbered as Civil Appeal No.6626/04, which has been taken up by us for final
hearing and disposal.
appellant, who appeared in person, urged that both the Family Court and the
High Court had erred in law in removing the minor child from the custody of the
mother to the father's custody, having particular regard to the fact that the
minor girl was still of tender age and had attained the age when a mother's
care and counseling was paramount for the health and well-being of the minor
girl child. The appellant submitted that the minor child would soon attain
puberty when she would need the guidance and instructions of a woman to enable
her to deal with both physical and emotional changes which take place during such
from the above, the appellant, who, as stated hereinbefore, is a doctor by
profession, claimed to be in a better position to take care of the needs of the
minor in comparison to the respondent who, it was alleged, had little time at
his disposal to look after the needs of the minor child.
the evidence adduced on behalf of the parties, the appellant tried to point out
that from morning till late at night, the respondent was busy in court with his
own work and activities which left the minor child completely alone and uncared
for. According to the appellant, the respondent who had a farm house some
distance away from Thrissur, spent his week- ends and even a major part of the
week days in the said farm house. The appellant urged, that as a mother, she
knew what was best for the child and being a professional person herself she
was in a position to provide the minor not only with all such comforts as were
necessary for her proper and complete upbringing, but also with a good
education and to create in her an interest in extra- curricular activities such
as music and dancing. The appellant strongly urged that the respondent had
never had any concern for the minor child since her birth and till the time
when the appellant left with her for Calicut.
appellant contended that for 7 years after the birth of the minor child, the
appellant had single-handedly brought up the minor since the respondent was too
pre- occupied with other activities to even notice her.
to the appellant, the minor child was extremely happy to be with her till the
respondent began to claim custody of the minor and soon after obtaining such
custody, he was able to influence the minor to such an extent that she even
went to the extent of informing the learned Judge of the Family Court that she
preferred to stay with her father.
this aspect of the matter, the appellant urged that the minor had been exposed
by the respondent to what she termed as "Parental Alienation
Syndrome". She urged that such a phenomenon was noticeable in parents who
had been separated and who are bent upon poisoning the mind of their minor
children against the other party. According to the appellant, there could
otherwise be no other explanation as to why even after being with the appellant
for 7 years, the minor child had expressed a preference to be with her father
after she was placed in his custody. The appellant laid stress on her
submissions that not only till the age of 8 years, when custody of the minor
child was given to him, but even thereafter the respondent had all along been
an absentee father taking little or no interest in the affairs and upbringing
of the minor child. According to the appellant, in view of the peculiar habits
of the respondent, the minor child was left on her own much of the time, which
was neither desirable nor healthy for a growing adolescent girl child.
that she had the best interest of the minor child at heart, the appellant
submitted that although under the provisions of Hindu Law by which the parties
were governed, the father is accepted as the natural guardian of a minor, there
were several instances where the courts had accepted the mother as the natural
guardian of a minor in preference to the father even when he was available.
Referring to Section 6 of the Hindu Minority and Guardianship Act, 1956, which
provides that the natural guardian of a Hindu minor in the case of a boy or an
unmarried girl is the father and after him the mother; provided that the
custody of a minor who has not completed the age of 5 years shall ordinarily be
with the mother, the appellant submitted that the aforesaid provision had
recognized the mother also as the natural guardian of a minor. It was urged
that in various cases the Courts had considered the said provision and had
opined that there could be cases where in spite of the father being available,
the mother should be treated to be the natural guardian of a minor having
regard to the incapacity of the father to act as the natural guardian of such
of her aforesaid submission, the appellant referred to and relied on the
decision of this Court in Hoshie Shavaksha Dolikuka vs. Thirty Hoshie Dolikuka,
reported in AIR 1984 SC 410, wherein having found the father of the minor to be
disinterested in the child's welfare this Court held that the father was not
entitled to the custody of the child.
appellant also referred to and relied on a Division Bench decision of the Kerala
High Court in the case of Kurian C. Jose vs. Meena Jose, reported in 1992 (1)
KLT 818, wherein having regard to the fact that the father was living with a
concubine who was none else than the youngest sister of the mother, it was held
that the father was not entitled to act as the guardian of the minor. On a
consideration of the provisions of Section 17 (3) of the Guardians and Wards
Act, 1890, it was also held that a minor's preference need not necessarily be
decisive but is only one of the factors to be taken into consideration by the
court while considering the question of custody.
was also made to another decision of this Court in the case of Kumar V. Jahgirdar
vs. Chethana Ramatheertha, (2004) 2 SCC 688, wherein in consideration of the
interest of the minor child, the mother, who had re-married, was given custody
of the female child who was 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 Court was of the view that the absence of female company in the house of
the father was a relevant factor in deciding the grant of custody of the minor
appellant urged that the courts in the aforesaid cases had considered the
welfare of the minor to be of paramount importance in deciding the question of
grant of custody. The appellant urged that notwithstanding the fact that the
minor child had expressed before the learned Judge of the Family Court that she
preferred to be with the father, keeping in mind the fact that the welfare of
the minor was of paramount importance, the court should seriously consider
whether the minor child should be deprived of her mother's company during her
period of adolescence when she requires her mother's counselling and guidance.
The appellant submitted that while the respondent had indulged Ritwika so as to
win over her affection, the appellant had tried to instill in her mind a sense
of discipline which had obviously caused a certain amount of resentment in Ritwika.
The appellant submitted that the court should look behind the curtain to see
what was best for the minor girl child at this very crucial period of her
growing up In support of her aforesaid submission, the appellant referred to
and relied on a decision of the Bombay High Court in the case of Saraswatibai Shripad
Ved vs. Shripad Vasanji Ved, AIR 1941 Bombay 103, wherein in a similar
application under the Guardians and Wards Act, it was held that since the
minor's interest is the paramount consideration, the mother was preferable to
the father as a guardian. The appellant emphasized the observation made in the
judgment that if the mother is a suitable person to take charge of the child,
it is quite impossible to find an adequate substitute for her for the custody
of a child of tender years notwithstanding the fact that the father remains as
the natural guardian of the minor.
similar view was expressed by this Court in the case of Rosy Jacob vs. Jacob A.
Chakramakkal, AIR 1973 SC 2090, wherein in the facts and circumstance of the
case, the custody of the daughter (even though she was more than 13 years of age
) and that of the youngest minor son, was considered to be more beneficial with
the wife rather than with the husband.
appellant submitted that during the child's growing years, she had from out of
her own professional income, provided her with amenities which a growing child
needs, including admission and tuition fees for the child's schooling in a good
school and for extra- curricular activities. The appellant submitted that she
had made fixed deposits for the benefit of the minor and had even taken out
life insurance policies where the minor child had been made the nominee. The
appellant submitted that apart from the above, she had also made various
financial investments for the benefit of the minor so that the minor child
would not be wanting in anything if she was allowed to remain with the
appellant submitted that although she had been granted visitation rights by the
different interim orders, since she was residing in Calicut and the respondent
was residing in Thrissur, she was unable to remain in contact with her minor
daughter on account of the distance between Calicut and Thrissur. In fact, the
appellant complained of the fact that on several occasions when she had gone to
meet her minor child at the residence of the respondent, she had not been
allowed to meet the child or to spend sufficient time with her. The appellant
submitted that the interest of the minor child would be best served if her
custody was given to the appellant.
claim of custody of the minor child made by the appellant was very strongly
resisted by the respondent who denied all the various allegations levelled
against him regarding his alleged apathy towards the minor and her development.
It was submitted on his behalf that till the age of 7 years, the child had been
living with both the parents, and was well cared for and looked after during
this period. The minor child was suddenly and surreptitiously removed from the
respondent's custody by the appellant who left her matrimonial home on 26th February, 2000 without informing the appellant who
had gone out of Thrissur on his professional work. It was submitted that only
after coming to learn that the appellant had removed the child to Calicut that the respondent was compelled
to file a Habeas Corpus Petition in the Kerala High Court which ended upon an
undertaking given by the appellant to bring the minor child to Thrissur. It was
only thereafter that the respondent was compelled to file the application under
Sections 7 and 25 of the Guardians and Wards Act and under Section 6 of the
Hindu Minority and Guardianship Act,1956.
to the respondent, even though the appellant had forcibly removed the minor to Calicut, thereby depriving the respondent
of the minor child's company, the said minor during her interview by the
learned Judge of the Family Court at Thrissur made her preference to be with
the father known to the learned Judge.
behalf of the respondent, it was also submitted that keeping in mind the fact
that the girl child was attaining the age of puberty, the respondent had
arranged with his elder sister, who was a retired headmistress of a school, to
come and stay with him and to attend to the minor's needs during her growing
years when she required the guidance and counselling of a woman. It was
submitted that the said aspect of the matter was duly considered by the Family
Court as well as by the High Court on the basis of an affidavit filed by the
respondent's sister expressing her willingness to stay with the respondent to
look after the minor child.
addition to the above, it was submitted on behalf of the respondent that the
Court had found on evidence that he had sufficient finances to look after and
provide for all the needs of the minor child. In any event, what was of paramount
importance was the welfare of the minor and the court had also taken into
consideration the preference expressed by the minor in terms of Section 17 (3)
of the Guardians and Wards Act, 1890.
behalf of the respondent it was submitted that the respondent was quite alive
to the fact that the minor child should not be deprived of her mother's company
and that for the said purpose, the appellant was welcome to visit the minor
child either at the respondent's house or in some neutral place and to even
keep the child with her on specified days if she was ready and willing to stay
with the appellant. What was sought to be emphasized on behalf of the
respondent was that in the interest of the child she should be allowed to
remain with him since he was better equipped to look after the minor, besides
being her natural guardian and also having regard to the wishes of the minor
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.
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.
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.
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. We, accordingly dispose of this appeal by
retaining the order passed by the learned Judge of the Family Court at Thrissur
on 20.3.2001 while disposing of O.P.No.193/2000 filed by the respondent herein
under Sections 7 and 25 of the Guardians and Wards Act, 1890 with the following
shall make arrangements for Ritwika to continue her studies in her present
school and to ensure that she is able to take part in extra-curricular
activities as well.
shall meet all the expenses of the minor towards her education, health, care,
food and clothing and in the event the appellant also wishes to contribute
towards the upbringing of the child, the respondent shall not create any
obstruction to and/or prevent the appellant from also making such contribution.
will be at liberty to visit the minor child either in the respondent's house or
in the premises of a mutual friend as may be agreed upon on every second Sunday
of the month. To enable the appellant to meet the child, the respondent shall
ensure the child's presence either in his house or in the house of the mutual
friend agreed upon at 10.00
A.M. The appellant
will be entitled to take the child out with her for the day, and to bring her
back to the respondent's house or the premises of the mutual friend within 7.00 P.M. in the evening.
In the event the
appellant shifts her residence to the same city where the minor child will be
staying, the appellant will, in addition to the above, be entitled to meet the
minor on every second Saturday of the month, and, if the child is willing, the
appellant will also be entitled to keep the child with her overnight on such
Saturday and return her to the respondent's custody by the following Sunday
evening at 7.00 P.M.
upon prior intimation to the respondent, will also be entitled to meet the
minor at her school once a week after school hours for about an hour.
will also be entitled to the custody of the minor for 10 consecutive days
during the summer vacation on dates to be mutually settled between the parties.
arrangement will continue for the present, but the parties will be at liberty
to approach the Family Court at Thrissur for fresh directions should the same
become necessary on account of changed circumstances.
parties will each bear their own costs.