Nil Ratan Kundu &
ANR. Vs. Abhijit Kundu  INSC 1334 (8 August 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4960 OF 2008 ARISING OUT
OF SPECIAL LEAVE PETITION (CIVIL) NO. 1243 OF 2008 NIL RATAN KUNDU & ANR.
... APPELLANTS VERSUS
C.K. THAKKER, J.
present appeal is filed against the judgment and order passed by the Additional
District & Sessions Judge, Fast Track, 1st Court, Barasat on July 15, 2006
and confirmed by the High Court of Calcutta in F.M.A.T. No. 3185 of 2006 on
December 7, 2007. By the 2 impugned orders, both the Courts below directed
handing over custody of minor child Antariksh Kundu to father-Abhijit Kundu,
understand the controversy in the appeal, it is appropriate if we narrate
relevant facts of the case:
appellants herein, (i) Nil Ratan Kundu and (ii) Smt. Kabita Kundu are maternal
grand father and grand mother respectively of minor Antariksh, father and
mother of deceased Mithu Kundu and father-in-law and mother-in-law of Abhijit
Kundu-respondent herein. It is the case of the appellants that they had a
daughter named Mithu whom they gave in marriage to Abhijit Kundu on August 8,
1995. The marriage was performed according to Hindu rites and ceremonies.
Sufficient amount of dowry by way of money, ornaments and other articles was
given to the respondent. According to the 3 allegation of the appellants,
however, the respondent and his mother were not satisfied with the dowry and
they started torturing Mithu for bringing more money from the appellants. On
November 18, 1999, a male child-Antariksh was born from the said wedlock. The
appellants thought that after the birth of son, torture on Mithu would be
stopped. Unfortunately, however, it did not so happen. Mithu was totally
neglected and the harassment continued. She became seriously sick. Coming to
know about the ill-health of Mithu, the appellants brought her to their house
and got admitted her in a nursing home for medical treatment. On being cured,
she returned to her matrimonial home, but the demand of dowry persisted and
physical and mental cruelty did not stop.
the night of April 9, 2004, as alleged by the appellants, Mithu was brutally
assaulted by the respondent and his mother and was brought to a hospital where
she was declared dead. Immediately on the next day 4 i.e. on April 10, 2004,
appellant No.1 lodged First Information Report (FIR) against the respondent and
his mother at Baranagar Police Station which was registered as Case No. 90 for
offences punishable under Sections 498A and 304, Indian Penal Code (IPC). The
respondent was arrested by the police in that case.
April 18, 2004, custody of Antariksh was handed over to the appellants.
Antariksh was found in sick condition from the residence of the respondent. At
that time, he was only of five years. It was his maternal grand
father-appellant No.1, who maintained the child with utmost love and affection.
He was admitted to St. Xavier's Collegiate School, Kolkata which is a
well-known and well-reputed school in the State of West Bengal.
due investigation of the case, on May 31, 2005, police submitted a charge-
sheet against the respondent and his mother and the criminal case is pending.
After the respondent was enlarged on bail, he filed an 5 application under the
Guardians and Wards Act, 1890 (hereinafter referred to as `1890 Act') praying
for custody of Antariksh. A reply was filed by the appellants to the said
application strongly objecting to the prayer made by the respondent. It was
expressly stated in the reply that custody of child Antariksh was given to them
when he was found in ailing condition in the house of the respondent. The
respondent and his mother had killed their daughter and a criminal case was
pending and custody of Antariksh may not be given to the father- respondent.
6 Trial Court's
trial Court, after considering the evidence on record, allowed the application
and held that respondent was father and natural guardian of Antariksh and the
present and future of Antariksh would be better secured in the custody of
respondent. Accordingly it passed an order that custody of Antariksh be
`immediately' given to the father. High Court's order
aggrieved by the said order, the appellants approached the High Court. But the
High Court also, by the order impugned in the present appeal, dismissed the
appeal holding that the trial Court was right in ordering custody to be given
to the father and the said order did not suffer from infirmity. The Division
Bench of the High Court, therefore, directed the appellants to handover child
Antariksh in the custody of his father with visitation rights to the
appellants. The said 7 order is challenged by the appellants-maternal grand
parents of Antariksh in this Court.
March 7, 2008, when the matter was placed for admission hearing, notice was
issued by this Court and was made returnable on March 24, 2008. The Court also
observed that let the child (Antariksh) remain present in the Court on that day
at 10.30 a.m. The learned counsel appearing for the appellants stated that the
appellants would bear expenses of bringing Antariksh to the Court. Accordingly,
a direction was issued that for that purpose, custody of Antariksh may be given
to the appellants on March 22, 2008.
the returnable date, i.e. on March 24, 2008, the Court heard learned counsel
for the parties. The Court also ascertained the wishes of Antariksh. It was,
however, observed in the order that an appropriate order would be passed on
March 31, 2008, the day on which the 8 matter was ordered to be listed for
further hearing. It was stated that till then the custody of Antariksh would
remain with maternal grand parents. It was also observed that it would not be necessary
to keep Antariksh present in the Court on the adjourned date. On March 31,
2008, the matter appeared on the board and the learned counsel for the parties
were heard. The learned counsel for the respondent prayed for time to file
affidavit in reply. It was also stated that the matter was urgent and affidavit
should be filed within a very short period. The Court, therefore, observed that
let such affidavit-in-reply be filed on or before April 2, 2008 and the
affidavit-in-rejoinder be filed on or before April 4, 2008. The matter was
adjourned to April 7, 2008. On April 7, 2008, again the Court heard learned
counsel for the parties and felt that the matter should be heard finally on a
non-miscellaneous day and accordingly the Registry was directed to place the
matter in 9 the last week of April, 2008. The matter was, therefore, placed on
board for final hearing and it was heard on April 29-30, 2008.
learned counsel for the appellants strenuously contended that both the Courts
were wholly wrong in granting custody of minor Antariksh to the respondent. It
was stated that the approach of the Courts below was technical and legalistic
rather than pragmatic and realistic. It was stated that in such matters,
paramount consideration which is required to be borne in mind by the Court is
welfare of the child and nothing else. Precisely that has not been done.
was alleged that the respondent and his family members were after dowry and
they had tortured Mithu since she could not bring sufficient amount of dowry.
She was physically and mentally harassed. She became ill and was admitted to
hospital by the appellants. After 1 she was cured, she returned to matrimonial
home, but the harassment and cruelty persisted.
Even after the birth of
Antariksh, the difficulties did not come to an end and as Mithu was unable to
bring more money, as demanded by the respondent and his family members, she was
killed and criminal proceedings were initiated against the respondent and his
mother which are pending.
was further stated that the above incident had given mental shock to minor
Antariksh who was also found sick in the house of the respondent when he was of
five years of age. The appellants brought Antariksh with them and got him
admitted in a recognized and well reputed school and he is very well settled.
In the circumstances, the Courts ought not to have passed an order directing
the appellants to handover custody of Antariksh to the respondent.
was also contended that the trial Court which exercised the power under 1890
Act, 1 did not ascertain wishes of Antariksh by calling him, observing that
none of the parties asked for such examination and considering his age, such
action was not taken. So far as the High Court is concerned, it observed that
the child had been `tutored' to make him hostile towards his father. According
to the counsel, there was nothing to show on what basis the above statement had
been made by the High Court and the custody had been wrongly granted to the
respondent. The said order, therefore, deserves to be set aside.
was also argued that under 1890 Act, in appointing or declaring a guardian of a
minor, the Court should keep in mind the welfare of the minor being paramount
consideration having regard to the age, sex and religion of the minor, the
character and capacity of the proposed guardian and his nearness of kin to the
minor. If the minor is old enough to form an independent opinion or preference,
the Court may consider that aspect 1 as well. In the instant case, the trial
Court decided the matter on July 15, 2006 when Antariksh was more than six
years of age. But neither his wishes were ascertained, nor his preference was
even enquired by calling him. It was also submitted that though `character' of
the proposed guardian has to be taken into account, the Courts below did not
appreciate in its proper perspective the fact that a criminal case was pending
against the respondent which related to the death of mother of minor Antariksh
involving the respondent himself and his mother and by observing that if he
would be convicted, appropriate action could be taken thereafter. The High
Court also committed the same mistake. Both the orders, therefore, are liable
to be set aside.
learned counsel for the respondent-father, on the other hand, supported the
order passed by the trial Court and 1 confirmed by the High Court. It was urged
that both the Courts below considered the relevant provisions of law, the
position of the respondent as natural guardian being father of Antariksh and
the facts in their entirety and held that there was no earthly reason to
deprive him of custody of minor Antariksh. The Courts felt that minor Antariksh
also should not be deprived of natural love and affection of his father in
absence of mother.
to the counsel, the Courts were conscious of the fact that a criminal case was
pending against the respondent and, therefore, observed that if ultimately the
respondent would be convicted and sentenced to jail, the appellants herein
(grand parents of the child) could move the Court for change of custody. Such
an order cannot be said to be illegal or contrary to law and in the exercise of
jurisdiction under Article 136 of the 1 Constitution, this Court may not
interfere with it.
we address ourselves to the issue regarding custody of Antariksh, let us
consider the legal position.
1 English Law
Halsbury's Laws of England, Fourth Edition, Vol. 24, para 511 at page 217 it
has been stated;
"Where in any
proceedings before any court the custody or upbringing of a minor is in
question, then, in deciding that question, the court must regard the minor's
welfare as the first and paramount consideration, and may not take into
consideration whether from any other point of view the father's claim in
respect of that custody or upbringing is superior to that of the mother, or the
mother's claim is superior to that of the father." (emphasis supplied)
has also been stated that if the minor is of any age to exercise a choice, the
court will take his wishes into consideration.
(para 534; page 229).
a writ of habeas corpus is sought for custody of a minor child. In such cases
also, the paramount consideration which is required to be kept in view by a
writ-Court is `welfare of the child'.
Habeas Corpus, Vol. I, page 581, Bailey states;
of the father may be as stainless as crystal; he may not be afflicted with the
slightest mental, moral or physical disqualifications from superintending the
general welfare of the infant; the mother may have been separated from him
without the shadow of a pretence of justification; and yet the interests of the
child may imperatively demand the denial of the father's right and its
continuance with the mother. The tender age and precarious state of its health
make the vigilance of the mother indispensable to its proper care; for, not
doubting that paternal anxiety would seek for and obtain the best substitute
which could be procured yet every instinct of humanity unerringly proclaims
that no substitute can supply the place of her whose watchfulness over the
sleeping cradle, or waking moments of her offspring, is prompted by deeper and
holier feeling than the most liberal allowance of nurses' wages could possibly
is further observed that an incidental aspect, which has a bearing on the
question, may also be adverted to. In determining whether it will be for the
best interest of a child to grant its custody to the 1 father or mother, the
Court may properly consult the child, if it has sufficient judgment.
Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J. observed;
The dominant matter
for the consideration of the Court is the welfare of the child. But the welfare
of the child is not to be measured by money only nor merely physical comfort.
The word `welfare' must be taken in its widest sense. The moral or religious
welfare of the child must be considered as well as its physical well-being. Nor
can the tie of affection be disregarded. (emphasis supplied) American Law
in the United States is also not different. In American Jurisprudence, Second
Edition, Vol. 39; para 31; page 34, it is stated;
1 "As a rule,
in the selection of a guardian of a minor, the best interest of the child is
the paramount consideration, to which even the rights of parents must sometimes
yield". (emphasis supplied) 27. In para 148; pp.280-81; it is stated;
where the writ of habeas corpus is prosecuted for the purpose of determining
the right to custody of a child, the controversy does not involve the question
of personal freedom, because an infant is presumed to be in the custody of
someone until it attains its majority. The Court, in passing on the writ in a
child custody case, deals with a matter of an equitable nature, it is not bound
by any mere legal right of parent or guardian, but is to give his or her claim
to the custody of the child due weight as a claim founded on human nature and
generally equitable and just. Therefore, these cases are decided, not on the
legal right of the petitioner to be relieved from unlawful imprisonment or
detention, as in the case of an adult, but on the Court's view of the best
interests of those whose welfare requires that they be in custody of one person
or another; and hence, a court is not bound to deliver a child into the custody
of any claimant or of any person, but should, in the exercise of a sound
discretion, after careful consideration of the facts, leave it in such custody
as its welfare at the time appears to require. In short, the 1 child's welfare
is the supreme consideration, irrespective of the rights and wrongs of its
contending parents, although the natural rights of the parents are entitled to
application by a parent, through the medium of a habeas corpus proceeding, for
custody of a child is addressed to the discretion of the court, and custody may
be withheld from the parent where it is made clearly to appear that by reason
of unfitness for the trust or of other sufficient causes the permanent
interests of the child would be sacrificed by a change of custody. In
determining whether it will be for the best interest of a child to award its
custody to the father or mother, the Court may properly consult the child, if
it has sufficient judgment".
28. In Howarth v. Northcott, 152 Conn 460 : 208 A 2nd 540 : 17 ALR 3rd 758; it
corpus proceedings to determine child custody, the jurisdiction exercised by
the Court rests in such cases on its inherent equitable powers and exerts the
force of the State, as parens patriae, for the protection of its infant ward,
and the very nature and scope of the inquiry and the result sought to be
accomplished call for the exercise of 2 the jurisdiction of a court of
was further observed;
of the forms of habeas corpus in a child custody case is not for the purpose of
testing the legality of a confinement or restraint as contemplated by the
ancient common law writ, or by statute, but the primary purpose is to furnish a
means by which the court, in the exercise of its judicial discretion, may
determine what is best for the welfare of the child, and the decision is
reached by a consideration of the equities involved in the welfare of the
child, against which the legal rights of no one, including the parents, are
allowed to militate".
was also indicated that ordinarily, the basis for issuance of a writ of habeas
corpus is an illegal detention; but in the case of such a writ sued out for the
detention of a child, the law is concerned not so much with the illegality of
the detention as with the welfare of the child.
Indian Law 2
legal position in India follows the above doctrine. There are various statutes
which give legislative recognition to these well-established principles. It
would be appropriate if we examine some of the statutes dealing with the
situation. Guardians and Wards Act, 1890 consolidates and amends the law
relating to guardians and wards. Section 4 of the Act defines "minor"
as a person who has not attained the age of majority. "Guardian"
means a person having the care of the person of a minor or of his property, or
of both his person and property. "Ward" is defined as a minor for
whose person or property or both, there is a guardian. Chapter II (Sections 5
to 19) relates to appointment and declaration of guardians.
Section 7 deals with
`power of the Court to make order as to guardianship' and reads as under:
7. Power of the Court
to make order as to guardianship.-(1) Where the Court is satisfied that it is
for the welfare of a minor that an order should be made-- 2 (a) appointing a
guardian of his person or property, or both, or (b) declaring a person to be
such a guardian, the Court may make an order accordingly.
(2) An order under
this section shall imply the removal of any guardian who has not been appointed
by will or other instrument or appointed or declared by the Court.
(3) Where a guardian
has been appointed by will or other instrument or appointed or declared by the
Court, an order under this section appointing or declaring another person to be
guardian in his stead shall not be made until the powers of the guardian
appointed or declared as aforesaid have ceased under the provisions of this
8 of the Act enumerates persons entitled to apply for an order as to
guardianship. Section 9 empowers the Court having jurisdiction to entertain an application
for guardianship. Sections 10 to 16 deal with procedure and powers of Court.
Section 17 is another material provision and may be reproduced;
17. Matters to be
considered by the Court in appointing guardian.-(1) In appointing or declaring
the guardian of a minor, the Court shall, subject to the provisions of this
section, be guided by what, consistently with the law to which the minor is
subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering
what will be for the welfare of the minor, the Court shall have regard to the
age, sex and religion of the minor, the character and capacity of the proposed
guardian and his nearness of kin to the minor, the wishes, if any, of a
deceased parent, and any existing or previous relations of the proposed
guardian with the minor or his property.
(3) If the minor is
old enough to form an intelligent preference, the Court may consider that
* * * * * (5) The
Court shall not appoint or declare any person to be a guardian against his
19 prohibits the Court from appointing guardians in certain cases.
III (Sections 20 to 42) prescribes duties, rights and liabilities of guardians.
Minority and Guardianship Act, 1956 (hereinafter referred to as "1956
Act") is another equally important statute relating to minority and
guardianship among Hindus.
Section 4 defines
"minor" as a person who has not completed the age of eighteen years.
means a person having the care of the person of a minor or of his property or
of both his persons and property, and inter alia includes a natural guardian.
Section 2 of the Act declares that the provisions of the Act shall be in
addition to, and not in derogation of 1890 Act.
6 enacts as to who can be said to be a natural guardian. It reads thus;
6. Natural guardians
of a Hindu Minor.
guardians of a Hindu minor, in respect of the minor's person as well as in
respect of the minor's property (excluding his or her undivided interest in
joint family property), are-- (a) in the case of a boy or an unmarried
girl--the father, and after him, the mother; provided that the custody of a
minor who has not 2 completed the age of five years shall ordinarily be with
(b) in the case of an
illegitimate boy or an illegitimate unmarried girl-- the mother, and after her,
(c) in the case of a
married girl-- the husband:
Provided that no
person shall be entitled to act as the natural guardian of a minor under the
provisions of this section-- (a) if he has ceased to be a Hindu, or (b) if he
has completely and finally renounced the world becoming a hermit (vanaprastha)
or an ascetic (yati or sanyasi).
section, the expressions "father" and "mother" do not
include a step-father and a step-mother.
8 enumerates powers of natural guardian. Section 13 is extremely important
provision and deals with welfare of a minor.
The same may be
quoted in extenso;
13. Welfare of minor
to be paramount consideration.
2 (1)In the
appointment or declaration of any person as guardian of a Hindu minor by a
court, the welfare of the minor shall be the paramount consideration.
(2)No, person shall
be entitled to the guardianship by virtue of the provisions of this Act or of
any law relating to guardianship in marriage among Hindus, if the court is of
opinion that his or her guardianship will not be for the welfare of the minor.
26 of the Hindu Marriage Act, 1955 provides for custody of children and
declares that in any proceeding under 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, maintenance and education of minor children, consistently with
their wishes, wherever possible.
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 2 consideration is the `welfare of the child' and not rights of
the parents under a statute for the time being in force.
aforesaid statutory provisions came up for consideration before Indian Courts
in several cases. Let us deal with few decisions wherein the courts have
applied the principles relating to grant of custody of minor children by taking
into account their interest and well-being as paramount consideration.
Saraswathibai Shripad v. Shripad Vasanji, ILR 1941 Bom 455 : AIR 1941 Bom 103;
the High Court of Bombay stated;
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."
2 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 minor. 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
Court further observed that merely because there is no defect in his personal
care and his attachment for his children--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 promoted by
granting their 2 custody to him. The Court also observed 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 modern 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 requirements of welfare of the minor children and the rights of their
respective parents over them.
in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544, this
Court reiterated that only consideration of the Court in deciding the question
of custody of minor should be the welfare and interest of the minor. And it is
the special duty and responsibility of the Court. Mature 3 thinking is indeed
necessary in such situation to decide what will enure to the benefit and
welfare of the child.
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 father 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; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC
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.
of law in relation to the custody of a minor child are well settled. It is
trite that while 3 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.
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 the 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.
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, bearing in 3 mind the welfare of the child
as the paramount consideration."
Kirtikumar Maheshanker Joshi v. Pradip Kumar Karunashanker Joshi, (1992) 3 SCC
573, custody of two minor 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 staying
with maternal uncle.
Before this Court,
both the children expressed their desire to stay with maternal uncle and not
with the father.
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;
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 to their father Pradipkumar. We are conscious that the father, being a
natural guardian, has a preferential 3 right to the custody of 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".
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 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 welfare is reasonably looked after in a manner in which
it should, the legal guardian cannot claim an order of return or recovery of
custody merely on the strength of his legal right or financial soundness.
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 guardian and is, therefore, entitled to the custody of the
child) may not be followed if he is alleged to have committed murder of his
wife. In such case, appointment of grand-mother as guardian of minor girl
cannot be said to be contrary to law.
the expression `welfare' in Section 13 of 1956 Act liberally, the Court
"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".
Goverdhan Lal & Ors. v. Gajendra Kumar, AIR 2002 Raj 148, the High Court
observed that it is true that father is a natural guardian of a minor child and
therefore 3 has a preferential right to claim custody of his son, but in the
matters concerning 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 minor 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.
in M.K. 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.
Kamla Devi v. State of Himachal Pradesh, AIR 1987 HP 34, the Court observed;
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 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
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
custody of minor children
our judgment, the law relating to custody of a child is fairly well-settled and
it is this. In deciding a difficult and complex question as to custody of
minor, a Court of law should keep in mind relevant statutes and the rights
flowing therefrom. But such cases cannot 3 be decided solely by interpreting
legal provisions. 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 procedure nor by precedents. In
selecting proper guardian of a minor, the paramount consideration should be the
welfare and well-being of the child. In selecting a guardian, the Court is
exercising 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 surroundings. 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
judgment, the Court must consider such preference as well, 3 though the final
decision should rest with the Court as to what is conducive to the welfare of
Orders of Courts
below not in consonance with law
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.
approach of both the Courts is not in accordance with law and consistent with
the view taken by this Court in several cases. For instance, both the Courts
noted that the appellants (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 reputed school 3 (St.
Xavier's Collegiate School, Kolkata). But it 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
disqualification provided by 1956 Act.
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 is the welfare of children and not the right of their parents.
Rosy Jacob, this Court stated;
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".
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 4 relevant circumstances. The father's fitness cannot
override considerations of the welfare of the minor children.
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 custody 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 or refuse custody of minor in favour of father, mother or any
this Court in Rosy Jacob held that children are not mere chattels nor toys, the
trial Court directed handing over 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 pendency of
appeal ordered handing over Antariksh to his father within twenty four hours
positively. We 4 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
another place, the trial Court noted that a criminal 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.
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
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.
should be, therefore, immediately removed from the custody of OPs (Maternal grand-parents)
to the custody of the petitioner (father)".
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
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 4
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
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.
it has come in evidence that after death of Mithu (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)
that mother of accused Abhijit (paternal grand mother of Antariksh) absconded
and Antariksh was found sick from the house of Abhijit.
our considered opinion, on the facts and in the circumstances of the case, both
the Courts were duty bound to consider the allegations against the respondent
herein and pendency of criminal case for an offence punishable under Section
498A, IPC. One of the matters which is required to be considered by a Court of
law is the `character' of the proposed guardian. In Kirit Kumar, this Court,
almost in similar circumstances where the father was facing the charge under
Section 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 factor and a Court of law must address to the said
circumstance while deciding the custody of the minor in favour of such person.
To us, it is no
answer to state that in case the father is convicted, it is open to maternal 4
grand parents to make an appropriate application for change of custody. Even at
this stage, the said fact ought to have been considered and appropriate order
ought to have been passed.
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 none of the parties asked for such examination by the Court.
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 performing 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 4 keeping in view the welfare
of the child.
in custody cases, wishes of the minor should be ascertained by the Court before
deciding as to whom custody should be given.
about a century, in Anni Besant (Mrs.) v. G. Narayaniah & Anr., 41 IA 314 :
AIR 1914 PC 41, under an agreement, custody of two minor sons was with the
mother who was staying in England. The father who was residing in Madras,
instituted 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.
Judicial Committee of the Privy Council held that under the Hindu Law, the
father was the 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 defendant mother to 4 send minors to India could have been
lawfully made by an Indian Court.
the contention, allowing the appeal and dismissing the suit, their Lordships
observed that it was open to the plaintiff- father to apply to His Majesty's
High Court of Justice 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." (emphasis supplied)
Since it was not done, the decree passed by both the Courts was liable to be
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
was, therefore, submitted that it cannot be 4 said that non-examination of
Antariksh or failure to ascertain his wishes by the trial Court was illegal or
unlawful and vitiated the order.
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.
Court reproduced some of the observations of learned Judges of the High Court
who had interviewed the minors. 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;
however, point out that there cannot be any manner of doubt as to 4 the
Court's power of interviewing any minor 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".
the facts of the case, however, the Court refused to undertake that exercise
"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 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. The impressions as recorded by the learned Judges
of the Bombay High Court, go to indicate that the minor has 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
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 5 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 in their
orders after their interviews with the girl who is of a tender age and is placed
in a very delicate and embarrassing situation 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 5 and demoralisation
in her mind".
the above observations and particularly the italicized 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 served any useful purpose but had the effect of creating
further depression and demoralization in her mind.
the instant case, on overall considerations we are 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 wanted to stay.
have called Antariksh in our chamber. To us, he appeared to be quite 5
intelligent. When we asked him whether he wanted to go to his father and to
stay with him, he unequivocally refused to go with him or to stay with him. He
also stated 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.
the foregoing reasons, the appeal deserves to be allowed and is accordingly
allowed. The application filed by the respondent Abhijit 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.