Mausami Moitra Ganguli Vs. Jayanti Ganguli  INSC 890 (12 May 2008)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3500 OF
2008 [Arising out of S.L.P. (C) No. 11324 of 2007) MAUSAMI MOITRA GANGULI --
APPELLANT (S) VERSUS
the father or the mother should have the custody of an almost ten year old male
child is the short question which falls for consideration in this appeal.
appellant-mother and respondent-father got married on 18th April, 1996. It was a
love marriage against the wishes of 1 the parents. On 28th May, 1998, a boy,
namely, Master Satyajeet was born from the wedlock. However, within a short
time, the relationship between the spouses came under strain.
appellant, who was employed as a teacher, felt that the respondent had
misrepresented to her about his occupational status; he did not have any regular
income to support the family; he was addicted to alcohol and smoking and also
had contacts with anti-social elements. The appellant, it is claimed, had to
support the respondent and his family with the meagre income she earned from her
school job and private tuitions. It was alleged that the respondent would force
her to keep all her savings in a joint bank account, from which he used to
withdraw money. She was subjected to physical violence, due to which, on 16th
August, 2001, she was forced to leave her matrimonial home at Allahabad, leaving
the infant with the father.
reaching Calcutta, where her parents were living, she filed a suit for divorce
against respondent, which was decreed ex-parte on 12th September, 2002. Since no
appeal was 2 preferred by the respondent against the said decree, it attained
April, 2003, the appellant moved a petition under Sections 10 and 25 of the
Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and
Guardianship Act, 1956 before the Family Court, Allahabad seeking a declaration
in her favour to be the lawful guardian of her minor son, Satyajeet and a
direction to the respondent to hand over the custody of the child to her.
application was hotly contested by the respondent.
her claim, it was alleged that having left him when he was less than three years
of age, the appellant had no emotional bond with the child; after leaving
Allahabad, she had not even talked to the minor child over the telephone or
enquired about his welfare; being the natural guardian of the child he was
capable of and was, in fact, looking after the welfare of the child; the child
was studying in a prestigious school at Allahabad for which he was paying a fee
of Rs.25,000/- per annum and had also nominated him in his 3 insurance policy.
As regards his financial position, it was stated that he owns a house, telephone
and a motor car whereas the appellant has no house of her own and is living with
her mother and brother in a two-room flat at Calcutta.
of her contentions, the appellant examined herself as PW-1 and two doctors. On
the other hand, the respondent examined himself as DW-1 and two of his
neighbours as DW-2 and DW-3. Inter alia, observing that the welfare and interest
of the minor is of utmost importance in relation to grant of custody to either
of the parents and taking into consideration the evidence adduced by the
parties, the Family Court found the respondent to be unfit to act as a guardian
of the minor child. The Court felt that the appellant had never neglected her
child but had to leave Allahabad to save her life. According to the Family
Court, several applications moved by the appellant for interim custody, during
the pendency of the custody application, showed that she had affection for her
child. The Court observed that the appellant was a highly qualified teacher
drawing a salary of Rs.22,000/- per month whereas the respondent was only a 4
private contractor without regular source of income and though the child was
studying in a prestigious school in Allahabad, there was lack of constant care
and protection of the child in the house of the respondent. Finding the
testimony of the appellant and her two witnesses to be credible, the Family
Court held that for the welfare of the child, the custody should be with the
mother. Accordingly, the application was allowed; the appellant was declared to
be the lawful guardian of her minor son and the respondent was directed to hand
over the custody of Satyajeet to the appellant, within one month of the date of
aggrieved, the respondent preferred Regular Appeal to the High Court. Vide order
dated 28th February, 2007, the High Court has set aside the order of the Family
Court and granted permanent custody of Satyajeet to the respondent.
pendency of the appeal, vide order dated 7th November, 2005, as an interim
measure, the High Court granted the custody of the child to the appellant. The
High Court obtained the opinion of the Director of Psychology, Allahabad, who
examined the mother, the father and the child 5 and also talked to the child
practically on every date of hearing. In the proceedings held on 23rd May, 2006,
extracted in the impugned order, in response to the question as to whether he
would like to stay with his father or mother, the child stated that he would
prefer to stay at Allahabad as it is his birth place and his mother should come
and stay with him at Allahabad. It is significant to note that the child had
stated so despite the fact that he was living with his mother since 7th
November, 2005, under the orders of the Court. Taking into account the material
on record, the High Court found that: (i) the respondent is financially sound
and able to cater to all the needs of the child for his development whereas the
appellant is unable to provide the same since she is living all alone; (ii) the
child is not able to reconcile with his uprooting from Allahabad and denial of
love and affection of the father; and (iii) the questions which were put to the
child and answers thereto indicate that the child wants to study at Allahabad.
regard to the prevalent circumstances and the fact that the child had received
his education from primary stage with his father at Allahabad, the Court came to
the conclusion 6 that the welfare and development of the child and his future
would be best served at present at Allahabad in the hands of the father.
Accordingly, the High Court set aside the order passed by the Family Court and
granted the custody of Master Satyajeet to the respondent, with the following
appellant shall make arrangement for master Satyajeet to continue his studies in
best schools of Allahabad and will ensure the development and welfare of the
child in the best way possible.
respondent-mother Ms. Mausami Moitra shall be at liberty to visit the child
either in the appellant's house or in the premises of mutual friend or at an
agreed place at any point of time and the appellant-father shall not object to
her meeting with the child.
appellant will also allow the child to live with the mother during school
vacations or on appropriate occasions.
Satyajeet shall be allowed to attend and participate in family
functions/festivities subject to his school attendance and examinations etc.
which are held in the family of her mother or during any other occasions as
jointly agreed to by the both the appellant-father and the respondent- mother.
5. Any other
further arrangements mutually agreed to between the 7 appellant-father and the
respondent- mother in the interest of the child."
Consequently, the custody of the child was restored to the father. It is this
order of the High Court which is under challenge in the present appeal.
matter came up for hearing, while issuing notice to the respondent, it was
directed that the appellant-mother and the respondent-father will remain present
in Court in person and the father shall also bring the child with him. On 24th
January, 2008, both the parties and Master Satyajeet appeared before us. Before
hearing the case, we interviewed Satyajeet in chambers and found that he was
quite intelligent and was able to understand the facts and circumstances in
which he was placed. He could comprehend matters and visualize his own
well-being. He seemed to have no complaint against his father. He explicitly
stated before us that he was not inclined to go with his mother and would like
to stay with his father and continue his studies at Allahabad where he has quite
a few friends.
8 10.We have
heard learned counsel for the parties.
counsel appearing for the appellant submitted that the order of the High Court
directing handing over of the custody of the minor child to the father is
vitiated because the High Court has ignored the basic principles of law relating
to the custody of the child, as enunciated by this Court in several judgments.
It was contended that the High Court has failed to take note of a vital fact
that being a contractor, the husband would remain away from the house most of
the time and, therefore, will have very little time at his disposal to look
after the needs of the child, who is left under the care of father's old mother.
It was also urged that being a school teacher in a public school, the appellant
will be in a much better position to take care of the needs of the child. It was
pointed out that the appellant has now joined Delhi Public School at Panipat and
has been allotted a staff quarter where the child can stay under her care and
can also study in the same school. It is, thus, asserted that the
appellant-mother would be in a much better position to take care of the needs of
the child in comparison to the respondent.
counsel appearing for the respondent, on the other hand, while refuting the
allegation regarding the non- availability of the respondent, laid stress on the
fact that during interview of the child by the High Court and this Court, the
child has in very clear terms expressed the desire to stay with the father which
shows that he is being looked after properly and is already studying in a good
school at Allahabad. It was submitted that shifting of the child from Allahabad
to Panipat in an absolutely new environment, all alone, with the mother, who had
abandoned him when he was less than three years of age would not only adversely
affect his studies, it will also affect him emotionally.
noted supra, the short question for consideration is whether the circumstances
as highlighted by the parties warrant that the custody of the child should be
changed from father to the mother? 14.The principles of law in relation to the
custody of a minor child are well settled. It is trite that while determining
the question as to which parent the care and control of a child 1 0 should be
committed, the first and the paramount consideration is the welfare and interest
of the child and not the rights of the parents under a statute. Indubitably the
provisions of law pertaining to the custody of a 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 as a
predominant consideration. In fact, no statute, on the subject, can ignore,
eschew or obliterate the vital factor of the welfare of the minor.
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. Better financial resources of either of the
parents or 1 1 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 all the relevant facts and
circumstances, bearing in mind the welfare of the child as the paramount
of this Court in a rather curt language had observed that the children are not
mere chattels; nor are they mere play-things for their parents. Absolute right
of parents over the destinies and the lives of their children has, in the modern
changed social conditions, yielded 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 1 (1973) 1 SCC 840 1 2 welfare of the minor children and the
rights of their respective parents over them.
Halsbury's Laws of England (Fourth Edition, Vol.13), the law pertaining to the
custody and maintenance of children has been succinctly stated in the following
Principles as to custody and upbringing of minors. Where in any proceedings
before any court, the custody or upbringing of a minor is in question, the
court, in deciding that question, must regard the welfare of the minor as the
first and paramount consideration, and must not take into consideration whether
from any other point of view the claim of the father in respect of such custody
or upbringing is superior to that of the mother, or the claim of the mother is
superior to that of the father. In relation to the custody or upbringing of a
minor, a mother has the same rights and authority as the law allows to a father,
and the rights and authority of mother and father are equal and are exercisable
by either without the other."
bestowed our anxious consideration to the material on record and the
observations made by the courts below, we are of the view that in the present
case there is no ground to upset the judgment and order of the High Court. There
is 1 3 nothing on record to suggest that the welfare of the child is in any way
in peril in the hands of the father. In our opinion, the stability and security
of the child is also an essential ingredient for a full development of child's
talent and personality. As noted above, the appellant is a teacher, now employed
in a school at Panipat, where she had shifted from Chandigarh some time back.
Earlier she was teaching in some school at Calcutta. Admittedly, she is living
Except for a
very short duration when he was with the appellant, Master Satyajeet has been
living and studying in Allahabad in a good school and stated to have his small
group of friends there. At Panipat, it would be an entirely new environment for
him as compared to Allahabad. Having interviewed Satyajeet in our chambers for
some time, we find it difficult to accept the stand of the appellant that the
father does not have sufficient time or resources to look after the welfare of
the child. We are convinced that the dislocation of Satyajeet, at this stage,
from Allahabad, where he has grown up in sufficiently good surroundings, would
not only impede his schooling, it may also cause emotional strain and 1 4
depression on him. It is also significant to note that during the course of
hearing on one of the dates, when we had not yet interviewed Satyajeet, we had
suggested that it would be better if the child could stay with his mother for
some more time. However, upon hearing us, he started crying and whining and,
showed reluctance to go with the mother.
reaction, we dropped the proposal. Under these circumstances and bearing in mind
the paramount consideration of the welfare of the child, we are convinced that
child's interest and welfare will be best served if he continues to be in the
custody of the father. In our opinion, for the present, it is not desirable to
disturb the custody of Master Satyajeet and, therefore, the order of the High
Court giving his exclusive custody to the father with visitation rights to the
mother deserves to be maintained. We feel that the visitation rights given to
the appellant by the High Court, as noted above, also do not require any
modification. We, therefore, affirm the order and the afore-extracted directions
given by the High Court. It will, however, be open to the parties to move this
Court for modification of this order or for seeking 1 5 any direction regarding
the custody and well-being of the child, if there is any change in the
result, the appeal fails and is dismissed accordingly.
having regard to the nature of the case, we leave the parties to bear their own
( D.K. JAIN)