Thrity Hoshie Dolikuka Vs. Hoshiam
Shavaksha Dolikuka B [1982] INSC 60 (4 August 1982)
SEN, AMARENDRA NATH (J) SEN, AMARENDRA NATH
(J) PATHAK, R.S. CITATION: 1982 AIR 1276 1983 SCR (1) 49 1982 SCC (2) 544 1982
SCALE (1)608
ACT:
Law relating to minor child-custody of the
minor daughter aged 11 years, whether to be with the mother of the father Duty
of the Court-Whether it is obligatory on the part of the Court to interview the
minor for ascertaining the minor's wishes and implement the same-Parsi Marriage
and Divorce Act, 1936, Sections 49; Guardians and Wards Act, 1890 : Sections 7
to 17.
HEADNOTE:
The appellant and the respondent belong to
the Parsi community and they were married in Bombay on the 27th December 1960 according to the rights and ceremonies of the Zoroastrian religion and custom.
A son was born to them on the 6th of May, 1965 and a daughter on the 18th April, 1971, whose name is Gospi and aged 11 years. Irreconcilable difference and
embittered relationship between the appellant and the respondent had led to the
filing of Suit No. 14 of 1979. by the appellant mother, for judicial
separation.
In the several applications made by the
parents for the custody of the child, the learned judges of the High Court,
before whom they said applications came up for disposals interviewed the
children separately and in the presence of the parents and passed appropriate
and equitable orders, keeping in the forefront the welfare of the minor
children.
The boy has now become a major as per the
Parsi Marriage and Divorce Act and the question of his custody does not arise.
The custody of the minor daughter was
ultimately given to the father as per the order of the Division Bench of the
Bombay High Court dated October 16,1981, Hence the appeal by the appellant
mother, after obtaining Special Leave of the Court.
Allowing the appeal, the Court.
HELD: 1. It is well settled that any matter
concerning a minor, has to be considered and decided only from the point of
view of the welfare and interest of the minor, the Court has a Special
responsibility and it is the duty of the Court to consider the welfare of the
minor and to protect the minor's interest. In considering the question of
custody of a minor, the Court has to be guided by the only consideration of the
welfare of the minor. [79 B-D] Rosi Jocob v. Jacob A. Chakrammakkal [1973] 3
S.C.R. 918 followed. H 2:1 There is no duty or obligation cast on the part of
the Court to interview the minor for ascertaining the wishes of the minor
before deciding the question 50 of the child custody under section 49 of the Parsi
Marriage and Divorce Act, 1936. [81 F-G] 2:2 It is true that Section 17(3) of
the Guardians and Wards Act, 1890 speaks of the consideration by the court of
the preference of the child "if the minor is old enough to form an
intelligent preference". The instant case, is not one under the Guardian
of Wards Act 1890. [83 B-C] 2:3 However, there cannot be any manner of doubt as
the Court's power of entertaining any minor for ascertaining the wishes of the
minor, if the Court consider it so necessary for its own satisfaction in
dealing with the question relating to the custody of the minor. [83 D] In the
facts and circumstances of the case, the minor is not fit to form an
intelligent preference which may be taken into consideration in deciding her
welfare. The report of the Social Welfare Expert records that the interviews,
the minor girl faced before the several judges 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 and the acrimonious dispute between them
resulting in the minor being dragged from court to court is bound to have
effected the sensitive mind of the minor girl.
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 ensure 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. Therefore, sending for the minor and interviewing
her in the present case, will not only not serve any useful purpose but will
have the effect of creating further depression and demoralisation in her mind.
[83 E-H, 84 A-D] 3:1 on a consideration of all the facts and circumstances of
the case and bearing in mind the paramount consideration of the welfare of the
child, the child's interest and welfare will be best served by removing her
from the influence of home life and by directing that she should continue to
remain in the boarding school, which is admittedly a good institution.
3:2 Home influence plays a very important
role in shaping the life of every child. Influence of a happy home where the
children are brought up under the affectionate guidance of their parents and
other relations, all concerned with the welfare of the children no doubt,
enables the children to lead a normal healthy life and materially contributes
to their welfare. In a happy home, the children are free from any kind of
unhappy tension and psychological strain and they grow up in a healthy
environment where their interests and welfare are properly looked after by
their parents. In such a case, the court is normally not called upon to
interfere and to consider the welfare of the children and the welfare of the
children is well taken care of by their parents whose primary concern is to 51
see their interest and welfare. It is also no doubt true that the children who
stay at home with their parents and do not go to boarding school may also be
very well disciplined in life and may have a very healthy happy and normal
growth, while staying at home. Therefore, in the interest of the children whom
they have brought into existence and who are innocent, every husband and wife
should try to compose their differences which are bound to be in any house.
Even when any husband and wife who are not in a position to reconcile their
differences and are compelled to part, they should part in a way as will cause
s least possible mischief to the children. [84 E-H, 85 H, 86 E] When the
atmosphere in a house vitiated and rendered surcharged with tension as a result
of bitter squabbles between husband and wife, causes misery and unhappiness to
a child, who has to live in constant psychological strain in such a broken home
in view of the bitter relationship between her parents fo each of whom she has
great affection, the healthy and normal growth of their child is to be
seriously affected. In the interest and for the welfare of the child in such a
case, the child is necessarily to be removed from such unhealthy environment of
a broken home surcharged with tension. In such a case, the proper and best way
or serving the interest and the welfare of the child will be to remove the
child from such atmosphere of acrimony and tension and to put the child in a
place where the embittered relationship between her parents does not easily and
constantly affect her tender mind. [88 C-E] 3:3 The question of the custody of
the child must necessarily be considered from the only view point of tho
welfare of the child. The person to whom tho custody of the child has to be
entrusted will necessarily be answerable to the school for payment of all
charges and expenses of the child and also in relation to any matter concerning
the child in her school life. [89 D-E] In the instant cases, it is clear that
the father is not inclined to allow the child to remain in a Boarding
institution, If the custody be left to him, the - father iq view of the
disinclination to allow the child to remain in the Boarding - institution, may
be in a position to create difficulties for the child for remaining in the
institution by non-payment of fees or otherwise.' The 'father is obsessed, with
the idea of obtaining exclusive control of the daughter and keeping the -
daughter with him in his house. [89 B-F] F It is not in dispute and it cannot
be disputed that the mother has a great deal of affection for her daughter in
her heart and to serve the best interest of the daughter the mother is prepared
to make any necessary sacrifice for the welfare of the daughter. The mother, at
considerable expense, had put her in Kimmins Boarding School, Panchghani, which
is recognised to be a very good institution She has been paying for all the
expenses of the daughter at the G' school. She has steady income out of which
she is in a position to meet all , the expenses of her daughter at the school.
The mother also does not suffer from any obsession regarding posession of the
girl and she wants her daughter to lead a healthy normal life essential for her
proper growth and development. The mother is very anxious that the child should
continue to remain in the Boarding; School. The girl now aged about 11 years,
is reaching an age when she will need the guidance of the mother. Therefore,
the custody of the girl should be given to the mother. [89 F-H, 90 A-B] 52
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 3032 of 1981.
Appeal by special leave from the judgment and
order dated the 16th October, 1981 of the Bombay High Court in Appeal No. 102
of 1981.
V. S. Desai, B. R. Agarwala and M.N. Shroff
for the Appellant.
M C. Bhandare, Mrs. S. Bhandare, Raj Guru
Deshmukh and T. Sridharan for the Respondent.
The Judgment of the Court was delivered by
AMARENDRA NATH SEN, J. Whether the father or the mother should have the custody
of their minor daughter now aged 11 years, is the question which falls for
consideration in this appeal by special leave granted by this Court.
Irreconciliable differences between the
father and the mother and embittered relationship between the two have resulted
in a sad protracted litigation. Unfortunately, in the various proceedings in
Court between the father and the mother, the child had become the central
figure and the child had appeared in Court on occasions for being interviewed
by the learned Judges of the Bombay High Court.
The child, it appears, is quite bright and
rather sensitive.
The unfortunate litigation between the father
and the mother appears to have badly affected the normal and healthy growth of
the child. The situation appears to be all the more unfortunate, as the father
and the mother both love the child dearly and the child is fond of both her
parents. It is, indeed, said that the parents who are both genuinely fond of
their daughter and have her welfare in their hearts, could not compose their
differences and work out a solution which would be most conducive to the
welfare of the child.
The responsibility has, therefore, devolved
on the Court.
The task of the Court is indeed difficult and
delicate. The Court in this case, is concerned with a human problem affecting
the future of a little girl. We feel that in a case of this nature a decision
of the Court however, may not succeed in solving the real problem and in
achieving the desired goal. Anyway, as all attempts by Courts to bring about an
agreed solution of the problem to the satisfaction of all concerned, have
failed the Court must proceed to discharge its duty, however painful and
delicate that task may be.
53 We shall now proceed to state some of the
broad facts relevant A for the purpose of the disposal of this case.
The appellant who is the mother of the child
and the Respondent who is the father of the child, both belong to the Parsi
Community and they were married in Bombay on the 27th December, 1960 according
to the rights and ceremonies of the Zoroastrian religion and custom. A son was
born to them on the 6th of May, 1965. The son who is called Shiavux is now more
than 16 years old. A daughter was born to the appellant and the respondent on
the 18th April, 1971. The daughter is named Gospi and she is now nearly 11
years of age. In this appeal we are concerned with the custody of this girl
Gospi. The appellant who is the mother and whom we shall describe in the
judgment either as the appellant or the mother, has been in the employment of
Tatas for a long time and she now works as a confidential secretary to one of
the Directors and gets a salary of Rs. 2500 per month. The respondent obtained
training in architectural engineering and had obtained a diploma. The
respondent had also obtained a licence from the authorities to enable him to
function as an architect. The respondent had worked with various concerns from
time to time and had also worked at times of his own as an architect. The
respondent at present owns a taxi which he plies himself. According to the
respondent he makes a gross earning on average of some- thing between Rs. 125
to Rs. 150 per day, by plying his taxi. After the marriage on 27.12.1960 the
respondent set up their matrimonial home in Mount Villas at Bandra, the tenancy
of which stood in the name of the appellant. As the appellant is an employee of
Tatas, the tenancy was granted to her by Ratan Tata Trust which owns the
premises. It appears that unfortunate differences arose between the appellant
and the respondent and the appellant left the matrimonial home on 21.5.1978. It
is indeed unfortunate that the parents could not reconcile their differences at
least in the interest of their children and on 21.4.1979 the appellant filed a
suit being suit No. 14 of 1979 for judicial separation. On 24.4.1979 the
appellant in her suit No. 1411979 made an application for getting the custody
of both the children i.e. the son Shiavux and daughter Gospi. By consent of the
parties on 27.4.1979, an interim order was passed on the said application and
the said order is to following effect:
"The children to spend the week-ends
commencing from Saturday the 28th April 1979 with the Petitioner and 54 stay
over-night with the petitioner on Saturdays and Sundays. Defendant to send the
children to the Petitioner - at 10.00 a.m. On Saturdays. Petitioner to return
the children to the defendant by 9.00 a.m. On Mondays.
Liberty to the Petitioner to take the
children out of Bombay to Lonavla or Matheran for a fortnight commencing from
5th May 1979 and ending 20th May, 1979.
Petitioner undertakes through her learned
counsel to bring the children back to Bombay on 20th May 1979 and to give
written intimation thereof forthwith to the Prothonotary and Senior Master. The
Petitioner shall return the children to the defendant on 21st May 1979 by 9
a.m.
Liberty to the defendant to take the children
out of Bombay to Matheran or Lonavla from 22nd May 1979 till 3rd June 1979 and
to bring the children back to Bombay. on or before 3rd June.
Should however the defendant not desire to
take the children out of Bombay from 22nd May till 3rd June 1979, the
Petitioner shall be at liberty to take the Children out of Bombay during this
period and shall return the children to the defendant by 9.00 a.m. On 4th. Should
however neither the petitioner nor the defendant be in a position to take the
children out of Bombay from 22nd May till 3rd June, the children shall remain
with the defendant and the petitioner shall have week-end access to the
children in the manner stated in clause (I) above.
In the event of the defendant being unable to
take the children out of Bombay from '2nd May, the defendant shall give written
intimation of his liability to do so to the petitioner's advocate on or before
15th May, 1979 in which event the petitioner shall be at liberty to keep the -
children with her either at Lonavla or Matheran till 3rd June 1979 and shall
return the children to the defendant by 9.00 a.m. On 4th June 1979.
This arrangement shall be till 15th June
1979.
Liberty to the Defendant to take the children
to Undwada and Shirdi between 4th and 8th June. 1979".
55 The application came up for final disposal
before Lentin, J. The learned Judge interviewed the children in his chambers
before passing his order on the said application on 28.6.1979. As this happens
to be the first order passed by the Court after interviewing and speaking to
the children, it will be appropriate to set out the order which reads:
"I have talked to the children in my
chambers. The boy completed 14 years of age and the girl has completed 8 years
of age. I have found both the children extremely intelligent and sensible. Both
appear to be distressed at the present state of acrimony between their parents.
Both have expressed their desire to spend their time with each of the parents
since it is not possible for them, in view of the-present state of affairs to
spend their time with both the parents at the same time.
After having talked to the children and after
having ascertained their wishes, I pass the following order for access in the
interest of both the children.
The father shall have access to the children
from Monday to Friday and the mother shall have access to .
the children during the week-ends, viz.
Saturday and Sunday.
The children shall be sent by the father to
the mother directly from School on Saturday and the children shall remain with
the mother till Monday morning when the mother will leave the children or
arrange for them to be p left at the school.
The mother shall have access to the children
on public holidays from 10.00 a.m. Of such holiday till the following morning
when she will leave or arrange for the children to be left at the school.
It is clarified that though Monday the 27th
of August, 1979 is a Public Holiday (Navroz Day) the children shall spend the
27th August 1979 with the father. The mother shall return the children to the
father's residence by 11.00 a.m. On the 27th day of August 1979," 56
Though the order passed by the learned Judge was in the circumstances a very proper
order passed in expectation that the order would be worked out smoothly to the
satisfaction of all concerned and would serve for the time being the best
interest of the children. Yet, as subsequent events go to indicate, the order
failed to achieve the purpose mainly in view of the attitude of the father who
was not willing to part with the children and to allow them to stay with the
mother. It appears that the father had made an application for variation of the
order passed by Lentin J. alleging in the petition that the children were not
willing to live with their mother on Saturdays and Sundays as ordered by the
Court. It further appears that no further order was made on the said
application of the father. A copy of this order unfortunately does not form
part of the records. There does not, however, appear to be any dispute that
Mehta, J.
disposed of this application after speaking
to the children in chambers on 10.8.1979.
On 24.4.1980, the appellant took out chamber
summons for an order against the respondent for allowing her access to the
minor children Shiavux and Gospi by having them with her from 16th May, 1980 to
15th June 1980 and for half the period of each subsequent school/college
vacation in addition to having them with her on week-ends and holidays, as the
respondent had refused to give such access to the appellant. Agarwal, J. who
heard the chamber summons spoke to the children alone in his chambers and
passed the following order on 2.5.1980.
"During the current Summer Vacation
beginning from 15th April 1980 and ending on 15th June, 1980 the children are
already with the father from 15th April, 1980 and they will continue to live
with the father till 14th May 1980. On 15th May 1980 the father will hand over
the children to their mother and from 15th May 1980 till 15th June 1980 the
children will remain with their mother. On 15th June 1980, she will bring back
the children to the house of their father. The rest of the arrangement between
the parties as per order dated 28th June, 1979 will continue.
It may be noted that I have ascertained the
wishes of the children before passing the present order.
Liberty to the mother to take the children
outside Bombay. if she so desires.
57 The present arrangement of the parents
sharing the company of the children during the vacation to continue in the
coming October and December vacations on the basis of the children remaining
with the father in the first half of the vacation and with mother in the other
half.
This arrangement of sharing the company of
the children during the vacation will also apply for coming years pending the
hearing and final disposal of the suit.
It is clarified that the order, whereby the
children go - to their mother every week end, will not be effective during the
vacation period as the children for the first half of the vacation will be
exclusively with the father and the other half exclusively with the mother.
Chamber Summons absolute accordingly with no
order as to costs." D It may be mentioned that the daughter Gospi had been
admitted to Carmel Convent High School in the K.G. Class and she had been
studying in that School. Shiavux was a student of St. Anne's High School. It
appears that on 1 5.6.1980, the Respondent without informing the appellant and
without her knowledge or consent removed Gospi from Carmel Convent High School
and put her in St. Anne's High School. On the 20th June, 1980 the appellant
made an application in her suit for an order for custody of her two children
and also for an order that the child Gospi be forthwith . . removed from St.
Anne's High School and be put in Carmel Con vent High School. The said
application was disposed by Kania, J.
on the 9th of July 1980 and the learned Judge
who had also spoken to Gospi was pleased to pass the following order:
"This is a petition for the custody of
the two minor children and for the decision of the question as to whether the
minor daughter Gospi should be removed from St. Anne's High School where she
has just been got admitted by her father. As far as the question of final
custody is . concerned, it appears, particularly in view of the orders passed
earlier by Lentin J. and Agarwal, J. that that question can be more
conveniently decided when the suit is disposed of. This position is accepted by
both the parties, 58 As far as the question of change of school is concerned,
it is regrettable that the respondent husband has changed the minor's school
from Apostolic Carmel Convent High School to St. Anne School without previously
informing the petitioner as he should have done. However, after talking to the
child, I find that she is anxious to continue . in St.. Anne's School at
present. Moreover, she has already been admitted to that school.' In view of
this I see no reason why the respondent should be directed to remove her from
St.
Anne's School and to try to get her re
admitted to Carmel Convent High School. If the child is not very happy in the
new school i.e. St. Anne's School the question of changing her school and
getting her admitted in Carmel Convent High School can be considered at the end
of the academic year. No order as to costs." On 9.9.1980, the Respondent
filed a contempt application against the appellant complaining of the violation
of the order of the Court in the matter of handing over of the girl Gospi to
him. The said application of the respondent was disposed of by Lentin, J. On
the 22.9.1980. The learned Judge talked to the children together and also
individually and it appears that the learned Judge had a fairly long
conversation with the girl Gospi for about 40 minutes The learned Judge
thereafter passed an order on the said contempt application of the respondent
to the following effect;
"I have talked to the children together
and individually. From my conversation with the daughter (aged 9) which
extended to well nigh 40 minutes. I do not think that she has either been
'brainwashed', 'tutored' or 'pressurised', into not going to the father. She is
undergoing a tremendous mental and emotional upheaval which finds her
bewildered and totally unhappy at the increasing acrimony between her parents.
She desperately needs her mother and cannot bear to be parted from her and it
is not mere childish pique, or 'brainwashing' or 'tutoring' that is behind it.
I am aware that normally a parent is given access to his or her child. However,
in this case, I fear that if this little girl who is mentally and emotionally
disturbed, is compelled to go to her father against her wishes,. the
consequences on her well being and her mind in its present state are predictable
and will be disastrous.
59 Her conversation with me did not reveal
any intention A on the part of the mother to want to flout my order of 28th
June, 1979 as urged on behalf of the father. If at all, it showed some
resentment on the child's part against the mother for trying to induce her to
go to her father against her will. The husband's contention that the wife
should have applied for modification of that order, does not take into account
(i) that she was trying to persuade the girl to go to her father, (ii) that
this at best is a technical breach, and (iii) that confining the wife to civil
prison, or otherwise punishing her, would in this case be no solution to what
is basically a human problem, more so when looked at from the view of the child
who is intelligent enough to speak up for herself and whose interest and well
being must be paramount consideration.
Taking all the facts and circumstances into
consideration, I pass no order on the motion with no order as to costs. I
suspend my earlier order dated 20th June, 1979 to the extent that it gives the
husband access to the girl from Mondays to Fridays and clarify that until the
disposal of the suit which, I am told, is ripe for hearing, the mother shall
have uninterrupted access to the girl and shall not be bound to send the child
to the father against the wishes of the child. For the mental and emotional
well being of his child, the husband should in good grace make this sacrifice.
It is further clarified, if clarification is at all necessary, that the
implication of this order is that the husband shall not, until the disposal of
the suit, visit the girl at her school, for such visits she dreads, resulting
in spells of nausea and black-outs and which visits she finds upsetting and
humiliating before her friends before whom she naturally wants to maintain the
facade that all is well between her parents." .. . . .
Against the said order of Lentin, J. the
Respondent filed an e appeal. During the pendency of the appeal, the suit filed
by the appellant and the counter claim filed in the suit by the respondent came
up for final hearing. It may be noted that in the counter claim filed by the
respondent in the said suit of the appellant, the respondent had made certain
allegations against the appellant. On 10. 11.1980, the suit and the counter
claim were disposed of. By the decree passed in the suit filed by the
appellant. divorce was granted on the 60 ground of desertion of the appellant
and the allegation of cruelty made by the appellant against the husband, the
respondent, was withdrawn by the appellant. The respondent had also withdrawn
all the allegations made against the appellant and the decree for divorce was
passed in favour of the appellant, as already noted, only on the ground of
desertion. A consent order was passed with regard to other reliefs and under
the consent order, the appellant got back her flat in Mount Villas from which
she was earlier ousted.
The appeal filed by the respondent against
the order of Lentin J. dated 22-9-1980 was also with drawn, and it was agreed
that the question of custody of the children would be decided by the Court on a
petition for custody to be filed by either of the parties. On 3-12-1980, the
respondent filed a petition for custody of. both the children. Since the son
Shiavux would complete 16 years of age is May, 1980, and was outside the
jurisdiction of Parsi Matrimonial Court, the appellant could not resist the
respondent's prayer for custody of Shiavux and the appellant contested the
respondents prayer for custody of daughter Gospi. The said custody petition of
the respondent came to be heard by Diashaw Mehta, J. and the learned Judge
passed an order directing the custody of the children to be given to the
father. It is desirable to set out the following,, observations of the learned
Judge while passing his order on the custody application. The learned Judge has
observed:
"I have interviewed both the minor
children individually and also in the presence of each of the parents. I have
also talked to the petitioner and the respondent in the presence of the
children. I consider both the petitioner as well as the respondent as persons
capable of looking after the welfare of their children. The only hurdle in the
way of the respondent was that she was not available to the minor Gospi for
most of the day after the child returned from School at about 1.00 p.m. and
tilt 7.00 p.m. The minor during this period was looked after by Mr. and Mrs.
Kotwal.
This, to my mind is an unfortunate situation.
However, benevolent, hospitable and kind the neighbours be, I do not see why
the child should grow up on the charity of neighbours, particularly when her
own kith and kin were available, especially her brother Shiavux. I am informed
that Shiavux and Gospi have not met each other for the last six months. I do
not know how this situation has been allowed to arise, but I can only say that
it is most 61 unfortunate. Both the brother and the sister appear to be A fond
of each other and have expressed their desire to live together. I would have
willingly given the custody of the minor Gospi to the mother, but for the fact
that she is not available to the minor for long hours of the day and again the
child will be left to be looked after by neighbours or servants. In the
petitioner's house-hold there are three sisters of the petitioner who can look
after the welfare of both Shiavux and Gospi in the absence of the Petitioner.
At pointed out earlier, one of the sisters is a qualified teacher and can look
after the education of the children.
At this stage, I may advert to the conduct of
Gospi during the forty-five minutes that she was in my chamber. Almost
throughout this period, Gospi kept crying or sobbing or whining although there
was no provocation to do so, and this was so even in the presence of her
mother, the Respondent. The child appeared to be nervous and kept biting her
nails. I had an occasion to meet Gospi and Shiavux about a year ago when a
Chamber Summons taken out by the Respondent, was heard by me. At that time
during my talks with both the children, I found them to be intelligent,
exhuberant and confident. They expressed a desire to live with both the
parents. The situation has changed radically today. Gospi has developed an
aversion for the father and expressed her desire to live with the mother. On
three different occasions she stated that she was not tutored and brain-washed.
It appears to me that the child is under considerable mental pressure and at
present she is not a normal child. It is important to create an atmosphere
where the child will live a normal and healthy life. It will only be under such
conditions that the child's progress at School will improve.
Between September, 1980 and today the child's
education has been neglected for some reason and this is evident from the fact
that the child failed in October 1980 Examination in three subjects. Normally I
would have given preference to the desire of the child and would have acceded
to her request. In the instant case, however, I do not think that it is in the
interest of Gospi to permit her to remain in the custody of the Respondent. The
child has been sadly neglected. If the child is to return to normalcy, it is
very necessary that she should be returned to the custody of the father.
62 Such an arrangement will permit both the
brother and the sister to grow up together and it will allow both of them to
take comfort and counsel from each other. I consider this arrangement to be in
the interest of both the children Shiavux and Gospi.
I, therefore, order that both the minors Shiavux
and Gospi will remain in the custody of the Petitioner till such time as they
reach the age of majority i.e. 16 years. Both the minors will remain with the
Petitioner during the course of the week i.e. from Mondays till Fridays. The
Petitioner will take the children on Saturday moorings at 9.00 a.m. to the
house of the Respondent and leave them with her till Sunday 7.00 p.m. when the
Respondent will hand over both the minors back in the custody of the
Petitioner. During the School vacations, half the period of the vacation will
be spent by the children with the Petitioner and half with the Respondent by
mutual arrangement. There will be no order as to costs of the petition .
Mrs. Ponda states that this order be stayed
as her clients desire to proceed further. This order will be stayed till
9.3.1981".
The appellant preferred an appeal on 6.3.1981
and the appellant also applied for interim stay of the order passed by Mehta,
J. It appears that an ad-interim stay was granted by the Division Bench. On the
20.3.1981 a Division Bench consisting of Madon and Khurdukar JJ. disposed of
the said application in the following terms:
"Pending the hearing and final disposal
of the appeal, the order dated February 19, 1981 appealed against stayed as far
as it relates to the minor Gospi alone.
Until the St. Annes High School in which the
minor Gospi is at present studying closes for the summer vacation, the
Respondent to be entitled to take the child to his residence on Thursdays from
9 a.m. till 8 p.m.
The respondent, who is present in Court,
gives an undertaking through his advocate to return the child Gospi to the
appellants residence each Thursday by 8 p.m.
63 So far as the school vacations are
concerned the A appellant to keep the child Gospi with her for the first half
of each vacation and the respondent to keep the child for the second half of
each vacation. The respondent to take the child to his residence by 9 a.m.
On-the first day of the second half of each
vacation and to return the child by 8 p.m. On the last day of the second half
of each vacation.
The respondent who, as mentioned, earlier is
present in Court, through his Advocate gives an undertaking to take the child
Gospi to the appellant's residence and leave her there by 8 p.m. On the last
day of the second half of each vacation.
We may record that we had seen the child
Gospi in Chambers on March 10, 1981 and had found her to be an extremely bright
and intelligent child. We may further record that the child stated that she did
not have any aversion to spend the day with her father, namely, the respondent,
but was greatly apprehensive that if she did so, she would not be allowed to
return her mother, namely, the appellant, with whom she wanted Lo stay or that
some application would be made to the Court on behalf of the respondent for the
purpose of not returning the child to the appellant but to keep her with him.
Notice of Motion made absolute in terms of
prayer (c) also and the above directions with respect to the Respondent's
access on Thursdays during the school terms and the order with respect to the
sharing of school vacations also to apply if the child Gospi gets re-admission
in the Apostolic Carmel Convent High School from the next academic year for the
. school terms and vacations. If the child Gospi does not get re-admission in
the Apostolic Carmel Convent High School but continues in the Anne High School,
the above directions with respect to the Respondent's access on Thursday.
during the School terms and the sharing of vacations to other school terms and
vacations.
Costs of this Notice of Motion will be costs
in the appeal".
64 As the respondent had not returned Gospi
to the appellant, in terms of the order and the undertaking given by the
respondent to the Court, the appellant on 3.4.1981 orally applied to the
Division Bench consisting of the same learned Judges viz. Madon and Khurdakar,
JJ. complaining of the breach of the undertaking and on the said application
the Court passed, inter alia, the following order:
"There were some allegations and
counter- allegations made by the parties against each other, into which we do
not desire to go. We, in the privacy of our chambers, talked to the child. We
also talked separately to both the parties. We have also heard both counsel. An
unfortunate position in that the child's final examination in the Vth standard
in which she is studying commences tomorrow and will finish on April 15, 1981.
Purely bearing this circumstance in mind, we permit the child to continue to be
with the Respondent until April 16, 1981. On that day we will give further
directions in the matter. We are passing this order purely in order not to make
the child travel back and forth between the residences during her examination.
Mrs. Ponda on behalf of the appellant states
that the child's textbooks, exercise books, the school uniform, etc. are at the
appellant's place of residence and that the appellant will hand them over to
the Respondent. The Respondent will collect these articles from the appellant's
residence by 4 p.m. today.
The matter will be on Board on April 16, 1981
for giving further directions. The parties and the child Gospi will remain
present in Court, and the Respondent will bring the child to Court on that day.
We also restrain, pending the giving of
further directions, the respondent, his servants, agents and family members
from taking the child Gospi outside Bombay." on 16.4.1981, the matter came
up again before the same division Bench for final orders and the Court was
pleased to pass the following order:
65 "Today in our Chamber we have heard
both learned advocates as well as the Respondent who wanted to address us. In
course of arguments we pointed out to Mr. Deshmukh, the learned Advocates for
the respondent, that when we had talked with the son of the marriage, Shiavux,
as also with the daughter of the marriage, Gospi, on March 10, 1981 we found
Shiavux using semi- legal pharaseology and words, while we found Gospi speaking
naturally like any other bright child of her age. We further pointed out that
when we had talked with the child Gospi on April 3, 1981 in our Chamber, we had
found her using the same type of pharaseology and words similar as those used
by Shiavux and in speaking of various family matters almost echoing what
Shiavux had said. When we put this to Mr. Deshmukh, the learned advocate for
the Respondent,. he replied that that was because time and again there was talk
about this case in the Respondent's house-hold. In our opinion, such talks
taking place in the presence of a child cannot be conducive to the happy or
healthy psychological growth and development of a child. Mr. Deshmukh, the
learned Advocate for the Respondent further made a request to us that though on
March 20, 1981 we had directed that Gospi should spend the first half of the vacation
with the appellant, that part of the order should be varied because Gospi had
just finished her examinations yesterday and had been till then in the grip of
the examination fever and not able to go about with the respondent, and,
therefore, the respondent should be permitted to keep Gospi for the first half
of the vacation. At this, Mrs. Ponda, the learned Advocate for the appellant,
pointed out that during the middle of her examination the respondent had taken
Gospi to some person at Goregaon. Mr. Deshmukh stated that the said person was
known as 'Maiji' and they said person stayed at Goregaon Tekdi and that several
persons visit her, for they consider her a holy woman. He further stated that
Gospi was taken to the said Maiji to seek her blessings. When we inquired, we
were informed that Gospi had also been taken to said Maiji on the 2nd day of
April when she was staying with the respondent in pursuance of order dated
March 20, 1981, that is, before we had talked to Gospi in the privacy of our
chamber on April 3, 1981.
66 Mr. Deshmukh also applied that we should
reconsider our order passed on March 20, 1981 in so far as it related to
re-admission of Gospi in the Apostolic Carmel Convent High School and permit
her to continue in the St. Annes High School, which order we had passed after
hearing elaborate arguments on the point. In support of this application Mr.
Deshmukh stated that if we were now to talk with Gospi we would find that she
has now changed her mind and does not want to rejoin the Apostolic Carmel
Convent High School. Assuming this is so, this fact speaks for itself. We,
therefore, reject the application also.
In these circumstances, we feel that this is
a fit case in which a home-study should be directed to be made by social
welfare expert to be appointed by- the Court. For this purpose both parties
have agreed to deposit with the Prothonotary and Senior Master of this Court a
sum of Rs. 300 each. Accordingly, by consent we direct that each of the parties
will deposit a sum of Rs. 300 with the Prothonotary by 12 noon of April 18,
1981.
Further directions with respect to the home-
study and the social welfare expert by whom it is to be conducted will be given
by us in our chamber at 11 a.m.
On Monday, April 20, 1981. Meanwhile the
appellant will take the child Gospi with her to her residence. We reserve the
giving of further directions about the party with whom the child will spend the
rest of the vacation and with respect to the access of the other parent to the
child. The further hearing of this matter is adjourned to 11 a.m. On Monday,
April 20, 1981 in Chambers as part heard." On 20.4.1981, the Court
appointed Mrs. Clarice D'Souza B.A., B. Ed., holder of a Diploma in Social
Service Administration of the Tata Institute of Social Sciences as a family
expert to assist the Court in discharging its function in the matter
concerning, the child with the observations:
"Parties are agreed that every facility
will be given to Mrs. D'Souza for her to interview privately the child Gospi as
also the parties themselves and the relatives and neighbours of the parties if
Mrs. D'Souza desires to interview them or any of them. Both parties are further
agreed 67 that Mrs. D'Souza will be also at liberty to interview the A present
as well as the former teachers of the child. The parties are further agreed
that Mrs. D'Souza if she thinks it necessary to do so, will be at liberty to
take the child and keep her with herself at her place for such period or
periods, including overnight stays, as she thinks it necessary, to enable her
to make a detached and fair report to the Court.
We may mention that Mrs. D'Souza has stated
to us that she does not desire any remuneration for the work she may do in this
connection. In our opinion, however, it would be unfair to Mrs. D'Souza who in
order to conduct this home study may have to travel from Colaba, where she
stays, to Bandara by taxi to conduct these interviews and may have to spend at
times the whole day in Bandara and may, therefore, also have to incur some other
expenses over her meals or refreshments. We do not see why Mrs. D'Souza should
go out of pocket. We will, therefore, decide after the home-study is concluded
the amount that should be paid to Mrs. D'Souza out of the moneys which the
parties have deposited with the Prothonotary and Senior Master mentioned above.
In the first instance, however, we direct the Prothonotary and Senior Master to
pay to Mrs. D'Souza towards the disbursement of the expenses which she will
have to incur, a sum of Rs. 300 out of the aggregate sum of Rs. 600 deposited
by the parties.
For the present we are adjourning the matter
as part heard in our Chamber at 2.45 p.m. On Tuesday the 28th April, 1981 for
receiving Mrs. D'Souza's report if it is ready. On that day in case the report
is ready, the parties are agreed that the Court should decide whether the
report should be treated as confidential or should be disclosed to the parties.
In case the report is not ready on that day, the parties are agreed that this
matter should be decided on a date to which the matter will be further
adjourned for the purpose of receiving the report and for deciding whether it
should be kept confidential or not.
Meanwhile the child Gospi will continue to
reside with her mother, the appellant, and as mentioned in our order dated
April 16, 1981 directions as to with whom the child is 68 to spend the rest of
the vacation and the right of access of the other parent to the child will be
decided by us after receiving the report and after hearing the advocates for
the parties." It appears that the minor daughter Gospi who had been living
with her mother had been missing from her mother's place on 30.4.1981,
resulting in a great shock to the appellant. On the very same day the
respondent applied to the Division Bench consisting of the same learned Judges
with an affidavit stating that the child had come on her own to the house of
the respondent who had brought the child to Court to surrender her and abide by
the Court's directions, as he did not want to commit contempt of the Court. As
on that date, the appellant was not able to attend the Court because of her
illness due to the shock of her not being able to find Gospi, the Court passed
an order that for the time being the child Gospi would go with the Respondent and
stay with him until May, 1981 and on that date the Court would give further
directions. On 13th May, 1981, the Court after considering the report of Mrs.
Clarico D'Souza, the family welfare expert appointed by the Court, passed the
following order:
"In the circumstances, set out above, we
would have had no hesitation in directing that the child Gospi should stay with
her mother, the appellant, throughout the summer vacation. However, an
unfortunate thing is that the appellant is working in the Tatas and therefore
has to be away from home the whole day except during week-ends, while the
respondent, who drives his own taxi, can always find time to contact Gospi in
the course of the day and lure her away. Bearing these factors in mind, we
permit Gospi to stay with the Respondent during the vacation. The respondent
will, however, take Gospi and leave her at the appellant's residence on every
Friday at 8 p.m. and will collect her from the appellant's residence every
Monday by 8 a.m. during the vacation. In our opinion best thing for Gospi would
be to go to a boarding school. However, we are sure that the respondent would
so poison her mind against any boarding school as to cause yet another
psychological turmoil and conflict in her mind. Mrs. D'Souza's report has also
convinced us that it is better for Gospi that she should be in Carmel Convent
High School rather than St. Annes High School, and that part of the 69 order
passed by us on March 20, 1981 will stand. During the school term the appellant
will be entitled to take Gospi to her residence straight from the School, every
Saturday and to keep her with her and to leave her in the School on Monday
mornings. During the rest of the days during the school term Gospi will stay at
the respondent's residence. The above directions will be operative during - the
pendency of appeal for all school terms and vacations." While passing the
said order, the Court in its judgment observed:- "We have very carefully
considered the matter.
Between the two spouses the person who in our
opinion would be best suited to bring up the child Gospi would be the
mother-namely, the appellant. Gospi is a girl about 10 years old, and she needs
a mother's care guidance and advice. The appellant has struck us as being
refined, mature and has been holding a steady job for the last twenty-one years
and is at present drawing a salary of Rs. 2,500 per month. She appeared
genuinely concerned with the interest and welfare of the minor.
On the other hand, it appears that the
respondent is somewhat immature and erratic, and has never been able to pursue
any particular vocation steadily, and appears to labour under a sense of
inferiority complex vis-a- vis the appellant. It further appears to us that the
custody of the children is more a matter of prestige with the respondent and is
a weapon in his armoury to hurt the appellant with. As we had almost on every
occasion when the matter was before us talked with the child in the privacy of
our chambers, either before or after passing orders, we found that when she was
with the appellant she behaved as a normal and happy child, but when she was
with the respondent, her personality had totally changed and she appeared to be
under a strain." The Court further observed:- "We find that Gospi has
been tutored by the respondent to tell a number of lies. According to what she
is alleged to have said as set out in the said affidavit, the appellant beats
and ill treats her. At no stage has Gospi ever mentioned this. On the contrary,
she has always expressed how very happy she was with 70 her, the appellant.
Mrs. D'Souza's report also bears this out. Another instance is with respect to
Gospi's version as to what happened in Court on April, 16, 1981. As set out in
the said affidavit she is alleged to have told the respondent that when her
mother, the appellant, came to take her away, she was screaming and shouting
and vomited on the Judge's table and that in spite of that, her mother, the
appellant, and her lawyer forcefully took her under instructions from the
judges. It is true that when we told Gospi to go with her mother the appellant,
she whimpered for some time and then threw out out-side the chambers. That the
conflict between the , two parents has greatly upset Gospi emotionally,
resulting in spells of nausea, has also been noticed by Mr. Justice Lentin in
his order passed on September 22, 1980. Further, it is clear from Mrs.
D'Souza's report that when the respondent had made Gospi change her school and
made her give up Carmel Convent High School and put her in St. Annes High
School, she was in the habit of vomiting in that school on the least
provocation, and she only adjusted herself in the school when she was reassured
by her teachers that she would go back to Carmel Convent High School from the
next academic year. After the initial fit of vomiting, Gospi went away with her
mother, the appellant, quite happy and content, and of her own accord she got
into the taxi along with her mother. We were watching from the corridor outside
our chambers, as we wished to observe Gospi's behaviour while she was going
home with the appellant, and in order to enable us to do so we had instructed
that the appellant and Gospi should leave the Court premises from the entrance
facing oval Maiden. We had also instructed one of our PAs. to accompany them
and to report to us, what is set out in the affidavit, therefore, cannot be
anything else but the tutoring of Gospi by the Respondent. We have already had
occasion to observe in an earlier order that this child who, while staying with
the appellant, was talking like a normal child, has started using semi-legal
phrases, which she was not doing previously." on the 9th of June, the
Respondent made an application to the Division Bench of the Bombay High Court
for an order for modification of the earlier order passed on the 20th of May,
1981 to the 71 extent that the child Gospi should not be compelled to go to
Carmel Convent High School but should be readmitted to St. Annes High School.
During the pendency of this application the appellant on the 6th July, 1981
also made an application to the Division Bench for committal of the respondent
for contempt of court for violation of the order passed by the Division Bench
on the 20th March, 1981. Both these applications came up for hearing together
on the 31st July, 1981 by the Division Bench consisting of Madon and Sujata
Manohar, JJ. The Division Bench dismissed the application of the respondent for
modification of the order dated 20th March, 1981 and the division Bench passed
an order on the contempt application taken out by the appellant, committing the
respondent to jail for a period of three months and to a fine of Rs. 1000. The
Division Bench further directed that the custody of the minor daughter Gospi to
be given to the appellant mother pending final disposal of the appeal and the
Division Bench further ordered-"As observed in the both Mrs. D' Souza's
report and in the order of 13.5.1981 the best thing to do in order to restore
Gospi to normalcy would be for her to be in an atmosphere away from where she
has been for the last almost two years. The appellant will, therefore, be at
liberty to place Gospi in any boarding school of the appellant's choice outside
Bombay. We also make it clear that Gospi will spend all her School vacations
with the appellant only without any access to or interference from the
respondent, his servants and agents including the Respondent's brother and
sister or any of them". The Division Bench further suspended the execution
of the punishment imposed on the respondent by the said order for a period of
four weeks from the date of the order to enable the respondent to file an
appeal in this Court, but refused to stay the execution of the rest of the
order. Mrs Sujata Manohar, JJ. who delivered the judgment on behalf of the Bench,
considered at great length the various facts and circumstances including
earlier proceedings between the parties. As this judgment is under appeal, we
do not propose to refer to the various findings and observations made in this
judgment at any length. Some of the observations may, however, be noted. The
Bench observed:- "A number of our brother Judges including one of us
(Madon, J.) who have had an occasion earlier to deal with the matter, have
consistently considered the mother as a mature and responsible woman who holds
a steady job for the last 21 years, fetching her at present a salary of 72 Rs.
2,500 per month. She is a mature woman who is genuinely and deeply concerned
with the welfare of her child. All these judges have also remarked that the husband
is an unstable person. He is unable to hold any job for any length of time. He
also suffers from a deepseated inferiority complex vis-a-vis his ex-wife and
for good reasons. From the respondent's conduct throughout this litigation it
is also apparent that he has scant regard for the welfare of his daughter. He
has, in order to score a point against his ex-wife, not hesitated to drag his
daughter from court to court resulting in his daughter's near nervous
breakdown." The Division Bench has also observed:- As repeatedly observed
by a number of our brother judges including one of us (Madon, J.) in the course
of these proceedings, the girl has appeared happy and normal when she is with
the mother. She appears tense and nervous when she is with her father. We have
no doubt that the child is being pressurised and terrorised into telling lies
by the father. The father's conduct leaves much to be desired." The
Division Bench further observed :- The respondent and his brothers and sisters
and mother do not have any interest in the welfare of the children. This is
borne out by the fact that they admittedly talk constantly in the presence of
the children regarding the present case so much so that the children have
picked up semi-legal words and phraseology as noticed by the Court in various
orders." Against this judgment and order of the Division Bench the
respondent (father) filed in this Court an appeal under S. 19(1)(b) of the
Contempt of Courts Act and in the said appeal made an application for interim
stay. On 15.8.81 on the said application for interim order, this Court passed
an order staying the operation of the Order of the Division Bench in so far as
the same related to the imposition of punishment of imprisonment and fine on
the father but directed that the rest of the order of the High Court would
stand. This Court further observed that the matter was of an 73 urgent nature
and the appeal which was pending before the High Court should be disposed of as
expeditiously as possible. It appears that in pursuance of the order passed by
the Division Bench of the Bombay High Court which was not in any way affected
by the order passed by this Court on 5.8.1981, the appellant had got the minor
daughter Gospi admitted into Kimmins Boarding School at Panchgani.
The appeal preferred by the appellant to the
Division Bench of the Bombay High Court against the judgment and order passed
by Mehta, J. on 19.2.1981 allowing the custody of the minor daughter to the
father came up for hearing before a Division Bench of the High Court consisting
of Jahagairdar and Ashok Modi, JJ. in October, 1981. It appears that in the
course of the hearing of the appeal, the learned Judges had expressed their
desire to meet the minor Gospi and directed that the minor Gospi should be
brought to Bombay to enable them to see her. Accordingly, Gospi was brought to
Bombay and was interviewed by the learned Judges at the residence of Modi, J.
on 9th October, 1981. We may note that the learned Judges have recorded their
impression of the interview with Gospi in a confidential note and had kept the
same in a sealed cover for the benefit of this Court in the event of any such
occasion arising. On the 16th of October, 1981, the Division Bench dismissed
the said appeal of the appellant with the following order:- "For reasons
to be recorded in the judgment to be delivered later, we dismiss this appeal
challenging the order dated 19th February, 1981 passed by Mehta, J.
This in effect means that the said order
awarding the custody of the minor daughter Gospi to the Respondent- father is
confirmed. However, in view of the fact that the minor daughter is at this
moment studying in a residential school at Panchgani, we direct that she will
not be brought to Bombay till at least 3rd November, 1981. The respondent father
is hereby allowed to spend what is called the exit week-end beginning from 23rd
October, 1981 with daughter at Panchgani.
After the child is brought to Bombay, the
directions contained in the order of Mehta, J. regarding the minor
daughter-spending her week-ends and vacations with the mother will come into
force. However, it must be made clear that if the school in which the minor
daughter is admitted is working on Saturdays, the mother will take the child
with her after the school hours are over." 74 The Division Bench delivered
its judgment on 3rd November, 1981.
Against this judgment and order of the
Division Bench the mother has preferred this appeal in this Court with special
leave granted by this Court. In the present appeal this Court passed an interim
order on the 12th November, 1981 to the following effect:- "Without
expressing any opinion on the merits of the question regarding the custody of
the child Gospi, who is the daughter of the appellant and respondent, we direct
as a matter of interim arrangement that she shall be allowed to continue her
education in the Panchgani School where she is studying at present until the
end of the academic year 1981-82. The parents will be at liberty to meet the
daughter alternatively, in accordance with the rules and regulations of the
school. While the girl is in school at Panchgani she will be at liberty to
write letters to both the parents.
We are informed that the school will have
vacation from November 18, 1981 till about January 18, 1982 and that the girl
wants to come to Bombay during the vacation, we direct that during the
forthcoming vacation, she will live with the father for the first half of the
vacation and with the mother during the second half of the vacation. The father
will bring the child from Panchgani to Bombay on the commencement of the
vacation and the mother will take the child back to the school when the school
reopens after the vacation.
At the end of the first half of the vacation,
the father will deliver the child to the custody of the mother.
The appeal shall come up for hearing in the
second week of March, 1982. Liberty to the parties to apply to this Court in
regard to the custody of the child during the pendency of the appeal, if the
appeal for any reason is not disposed of before April 15, 1982. The appeal (CA
1796/1981) the contempt matter will be tagged with this appeal.
We direct that the school authorities will
submit to this Court a report in the first week of March 1982 on the progress
and performance of the child, and on the question whether she was happy to be
away at Panchgani." 75 The appeal came up for hearing before us and on the
conclusion of the hearing we reserved judgment for our consideration of the
matter. However, taking into consideration the fact that the next term in the
Panchgani School will be commencing shortly and there will also be a short
recess of the School we passed the following further interim order on 27.4.1982
pending consideration of the matter and delivery of the judgment by us:-
"We direct that until further orders of this Court the child Gospi, the
daughter of the appellant and the respondent, shall be allowed to continue her
education in the Kimmins High School at Panchgani. The parents will be at
liberty to meet the daughter alternately in accordance with the rules and
regulations of the School, the first opportunity of so meeting the daughter
being afforded to the father. While the girl is in the school at Panchgani, she
will be at liberty to write letters to both parents.
We are informed that the school is in
vacation from April 21, 1982 to May 12, 1982 and that on the commencement of
the vacation the child Gospi was brought home and is continuing there. We
direct that she will live with the father for the first half of the vacation, and
thereafter will live with the mother during the second half of the vacation.
The child will be handed over by the father to the mother in the presence of
the Vacation Judge of the Bombay High Court on May 17, 1982 at an hour
convenient to the Hon'ble Judge and we request the High Court to inform this
Court of the fact of such handing over. We direct further that on the expiry of
the vacations the mother will take the child back to the School at Panchgani
and entrust her to the custody of the Principal of the School.
The Court trusts that each parent will
promote a sense of respect and affection in the child's mind for the other
parent and will take active interest in persuading the child to settle down in
the school at Panchgani, and so promote an atmosphere conductive to the proper
development of her personality, her mental and physical health and the
enjoyment of emotional security and well-being." Turning to the merits of
the appeal, we must observe at the outset that this case which is concerned with
the welfare of a bright, sensitive 76 and innocent girl of about 11 years of
age now, has in the peculiar facts and circumstances of the case caused us a
great deal of anxiety and pain and we have given very careful consideration to
the matter.
Elaborate arguments have been advanced from
the bar on behalf of the respective parties.
Mr. Desai, learned counsel for the appellant,
has made the following submissions:-
1. In deciding the question of custody of the
minor, the Court should be guided only by the consideration of the welfare of
the minor. Mr. Desai in this connection has referred to S. 49 of the Parsi
Marriage and Divorce Act, 1937, S. 41 and 42 of the Indian Divorce Act, 1969,
S. 26 of the Hindu Marriage Act, 1957 and S. 38 of the Special Marriage Act,
1956 containing similar provisions and he has strongly relied on the decision
of this Court in Rosi Jacob v. Jacob A. Chakrammakkal.(1)
2. In the facts and circumstances of this
case, the father cannot be considered to be a fit person to have the custody of
the child and the custody of the child should be entrusted to the mother. In
support of this submission that the father is not the fit person to be given
the custody of the minor child, Mr. Desai has referred to the various
proceedings between the parties, the orders passed thereon and the observations
made by learned Judges of the Bombay High Court from time to time. Mr. Desai
has argued that the father in his self interest to have the minor child on his
side and under his control, has been trying to poison the mind of the daughter
against the mother for whom the daughter has a very great affection with the
object of alienating the daughter from the mother without any regard to the
daughter's sentiments and without appreciating the very great damage that he is
doing to the daughter and this act of the father has caused a tremendous amount
of psychological strain, resulting in a near nervous breakdown of the daughter.
Mr. Desai has argued that the minor being a daughter and now of the age of 11
years needs the company and guidance of her mother. It is the argument of Mr.
Desai that the mother has no particular self-interest in obtaining the custody
of the child and her only concern is the welfare of her daughter, and she has
spent and is 77 prepared to spend whatever amount is necessary for the welfare
of the daughter and she is also in a position to do so. Mr. Desai has commented
that the main ground on which the learned single Judge of the High Court and
also the learned Judges of the division Bench had not given the custody of the
minor to the mother is that the mother is a working girl and she does not have
time to devote to the daughter and it is his comment that this is really no
ground. He further comments that the father in most cases has to work for a
living and in the present case the father earns his living by plying a taxi at
the present. He argues that in modern times, particularly in view of the
present economic condition, in very many cases, both the husband and the wife
have to work for a proper living and the mere fact that the father or the
mother has got to attend to work, cannot disqualify the father or the mother.
Mr. Desai has submitted that apart from the fact that the mother is a working
girl, there is nothing against the mother which would disentitle her to the
custody of her daughter and in this connection Mr. Desai has referred to the
judgments of the learned single Judge and also the division Bench of the Bombay
High Court. Mr. Desai has further pointed out that the learned single Judge
gave the custody of the daughter to the father though the daughter had clearly
expressed her desire to live with her mother.
3. The best interest of the minor in the
peculiar facts and circumstances of this case will be served only if the minor
is removed from the unhealthy atmosphere of home life and is placed in a
Boarding House where she will have healthy normal growth in the company of
other children of her age under the care and supervision of competent teachers,
unimpeded by the conspiratorial attitude of the father to destroy her feelings
for the mother. In support of this submission, Mr. Desai has referred to the
various orders passed in which the learned Judges of the Bombay High Court have
recorded their impressions after interviewing the girl; and Mr. Desai has
placed particular reliance on the report of the Social Welfare Expert,
appointed by the Bombay High Court.
Mr. Desai has further submitted that the
minor who has been admitted to Panchgani Boarding School and has been there for
some time, is gradually fitting in well and she has started feeling happy in
the institution. In this connection Mr. Desai has referred to a number of
letters addressed by the minor to her mother and also to the report of the
Principal of the institution.
78 Mr. Bhandare learned counsel for the
respondent (the father of the minor) has raised the following contentions:
1. In deciding the question of custody of a
minor, the Court will no doubt be guided by the consideration of the minor's
welfare but in considering the question of the welfare of the minor, the Court
should see the minor to ascertain the wishes of the minor before deciding the
question of the welfare of the minor and the custody of the minor. It has been
his argument that it is indeed the duty and obligation of the Court to see the
minor to ascertain the wishes of the minor before coming to any decision on the
question of custody of the minor. In support of this argument, Mr. Bhandare has
referred to S. 49 of the Parsi Marriage and Divorce Act, 1937, Ss. 7 to 17 of
the Guardians and Wards Act, 1890 and also S. 26 of the Hindu Marriage Act,
1955. Mr. Bhandare has strongly urged upon us to send for the minor and to talk
to her either in Court or in chambers in the presence of the parents or alone
in their absence at the discretion of the Court before deciding the question of
custody of the minor.
2. The minor is a bright and sensitive girl
and is deeply attached to the members of the family and to her brother in
particular. Home influence has considerable importance to the minor in properly
shaping her life and future. Removal of the minor from home and placing her in
any Boarding School, however, good and eminent the institution may be, will not
enure to the benefit of the minor, as she will not fit in and the minor will
not feel happy in the boarding school. The absence of the company of the
father, the brother and the other near relations will deeply affect the mind of
the minor and cause a phsychological depression in her mind and this will
impede her normal healthy growth. Mr. Bhandare has in this connection referred
to a letter sent by the minor to her aunt (father's sister).
3. The order of custody of the minor daughter
in favour of the father passed by the learned single Judge of the Bombay High
Court and affirmed by the Division Bench of the Bombay High Court should not be
interfered with by this Court in this appeal. The mother has hardly any time to
look after the welfare of the daughter as she has to remain constantly busy
with her work. Mr. Bhandare has also criticised the conduct of the mother and
he has commented that the mother had walked out of the house without caring for
the children and had no time to think of them 79 for a number of months and
during this period both the son and the daughter had lived happily with the
father and the other relations. According to Mr. Bhandare, the only object of
the mother who is not in a position to look after the interests or the welfare
of the daughter herself is to deprive the father of the company of his daughter
by putting her in a Boarding House.
The principles of law in relation to the
custody of a minor appear to be well-established. It is well-settled that any
matter concerning a minor, has to be considered and decided only from the point
of view of the welfare and interest of the minor. In dealing with a matter
concerning a minor, the Court has a special responsibility and it is the duty
of the Court to consider the welfare of the minor and to protect the minor's interest.
In considering the question of custody of a minor, the Court has to be guided
by the only consideration of the welfare of the minor.
In Halsbury's Laws of England, 3rd Edn., Vol.
21, the Law is succintly stated in para 428 at p. 193-194 in the following
terms:
"428. Infant's welfare paramount. In any
proceedings before any court, concerning the custody or upbringing of an infant
or the administration of any property belonging to or held on trust for an
infant or the application, of the income thereof, the Court must regard the
welfare of the infant as the first and paramount consideration and must not
take into consideration, whether from any other point of view, the claim of the
father, or any right at common law possessed by the father in respect of such
custody, upbringing administration or application is superior to that of the
mother, or the claim of the mother is superior to that of the father. This
provision applies whether both parents are living or either or both is or are
dead.
Even where the infant is a foreign national,
the court, while giving weight to the views of the foreign court, is bound to
treat the welfare of the infant as being of the first and paramount
consideration whatever orders may have been made by the Courts of any other country."
In the case of Rosi Jacob v. Jacob A. Chakramakkal (supra), this Court has
observed at pp. 934-935:
"Where, however, family dissolution due
to some unavoidable circumstances becomes necessary the Court has 80 to come to
a judicial decision on the question of the welfare of the children on a full
consideration of all the relevant circumstances. Merely because the father
loves his children and is not shown to be otherwise undesirable cannot
necessarily lead to the conclusion that the welfare of the children would be
better prompted by granting their custody to him as against the wife who may
also be equally affectionate towards her children and otherwise equally free
from blemish, and who in addition because of her profession and financial
resources, may be in a position to guarantee better health, education and
maintenance for them. The children are not mere chattels; nor are they mere
playthings 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
welfare of the minor children and the rights of their respective parents, over
them. The approach of the learned single Judge, in our view, was correct and we
agree with him. The Letters Patent Bench on appeal seems to us to have erred in
reversing him on grounds, which we are unable to appreciate.
At the bar reference was made to a number of
decided cases on the question of the right of father to be appointed or declared
as guardian and to be granted custody of his minor children under s. 25 read
with s. 19 of the Guardians and Wards Act. Those decisions were mostly decided
on their own peculiar facts. We have, therefore, not considered it necessary to
deal with them. To the extent, however, they go against the view we have taken
of s. 25 of the Guardians and Wards Act, they must be held to be wrongly
decided.
The respondent's contention that the Court
under the Divorce Act had granted custody of the two younger children to the
wife on the ground of their being of tender age, no longer holds good and that,
therefore, their custody 81 must be handed over to him appears to us to be
misconceived. The age of the daughter at present is such that she must need the
constant company of a grown-up female in the house genuinely interested in her
welfare. Her mother is in the circumstances the best company for her. The
daughter would need her mother's advice and guidance on several matters of
importance." These observations were no doubt made by this Court, while
dealing with a case of rival claims between the father and the mother over the
custody of the minor children mainly under the Guardians and Wards Act, 1890.
The aforesaid observations in our opinion, are applicable to the instant case.
We shall now proceed to examine the
contention of Mr. Bhandare that in deciding the question of custody of any
minor, it becomes the duty and obligation of the Court to interview the minor
for ascertaining the minor's wishes and to implement the same. S. 49 of the Parsi
Marriage and Divorce Act, 1936 provides "In any suit under this Act, the
Court may from time to time pass such interim orders and make such provisions
in the final decree as it may deem just and proper with respect to the custody,
maintenance and education of the children under the age of 16 years, the
marriage of whose parents is the subject of such suit, and may, after the final
decree upon application by petition for this purpose, make, revoke, suspend or
vary from time to time all such orders and provisions with respect to the
custody, maintenance and education of such children as might have been made by
such final decree or by interim orders in case the suit for obtaining such
decree were still pending".
This section confers power upon the Court to
pass such orders as the Court deems just and proper with respect to the
custody, maintenance and education of the children under the age of 16 years in
a case falling under the Parsi Marriage and Divorce Act, 1936. This section
does not speak anything about a Judge interviewing a minor before passing any
order in the matter of custody, maintenance and education of the minor and this
section or any other section in this Act, does not cast upon the Court any duty
or obligation to see the minor and to ascertain the wishes of the minor.
The material portion of S. 7 of the Guardians
and Wards Act,1890 to which reference has been made by Mr. Bhandare reads as
follows:
82 "7(1). Where the Court is satisfied
that it is for the welfare of a minor that an order should be made:
(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." This section empowers the Court to appoint
a guardian of the person or property of the minor where the court is satisfied
that is for the welfare of the minor to do so.
S. 17 of the Guardians and Wards Act, 1890
may in this connection also be noted :
"17. (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 preference.
x x x x x x x x x (5) The Court shall not
appoint or declare any person to be a guardian against his will." This
section provides for matters to be considered by the Court in appointing the
guardian. Sub-section (1) provides that subject to the provisions of this
section, the Court should consider the law to which the minor is subject and be
guided by what appears in the circumstances to be for the welfare of the minor.
Sub-section (2) stipulates that in considering what will be for the welfare of
83 the minor, the Court shall have regard for 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.
Sub-section (3) empowers the Court in the event the minor is old enough to form
an intelligent preference, to consider the preference. Sub-section (5) prevents
the Court from appointing or declaring any guardian against the will of the
person. Sub-section (3) of this section undoubtedly enables the Court to
consider the preference of any minor if the minor is old enough to form an
intelligent preference.
In the present case we are not concerned with
the question of appointment of a guardian either of the property or of the
person of the minor, under the Guardians and Wards Act, 1890.
We may, however, point out that there cannot
be any manner of doubt as to 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.
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 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 84 and is placed in a very delicate and embarrasing 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 and
demoralisation in her mind.
We are, therefore, unable to accept the
contention of Mr. Bhandare that there is any duty or obligation on the part of
the Court to interview the minor for ascertaining the wishes of the minor
before deciding the question of her custody and that we should send for the
minor in the present case and interview her to ascertain her wishes before we
proceed to decide the question of her custody.
Home influence plays a very important role in
shaping the life of every child. Influence of a happy home where the children
are brought up under the affectionate care and guidance of their parents and
other relations, all concerned with the welfare of the children, no doubt,
enables the children to lead a normal healthy life and materially contribute to
their welfare. In a happy home the children are free from any kind of unhappy
tension and psychological strain and they grow up in a healthy environment
where their interests and welfare are properly looked after by their parents.
In such a case, the court is naturally not called upon to interfere and to
consider the welfare of the children and the welfare of the children is well
taken care of by their parents whose primary concern is to see to their
interest and welfare. It may, however, be mentioned that even in cases of happy
homes where the children have a very congenial atmosphere for their healthy
growth and are very well looked after by their parents, the parents, in many
cases do send their children to Boarding Schools. The parents do so, as the 85
parents feel that the interest and welfare of children will be better served,
if they are sent to a good Boarding School where the children, on their own and
in the company of their fellow students, will have a greater and better
opportunity of developing their personality and shaping themselves properly
under the supervision of competent teachers to enable them to fashion their
lives properly and face bravely and squarely the hard realities of the world. A
good Boarding School has very many advantages and is in a position to enforce
proper discipline which is obviously necessary for healthy growth of every
child. It is well- known that mainly because of such desire on the part of very
many of the parents to send their children to a good Boarding School, seats are
hardly available in a good Boarding Institution these days and seats have to be
booked well in advance. Loving parents who send their children to Boarding
Schools for education, have generally to do so against the wishes of the
children. Children will naturally not be inclined to stay away from their
affectionate parents and to leave their happy homes where they enjoy not only
the affection and care of their parents but also all the homely comforts and
they do not like to be subjected to the rigours of strict discipline enforced
in a Boarding Institution.
Children sent to a Boarding Institution from
happy homes, also find it difficult to adjust themselves to the environment of
a Boarding School and may not feel very happy. Fond parents bearing only in
mind the interest and welfare of their children still send their loving
children to Boarding Schools against the wishes of the children, sacrificing
themselves the company of their children at home, and persuade their children
to adjust themselves in the Boarding School and they go on encouraging their
children to enable them to settle down in that institution.
Parents do so at considerable sacrifice to
themselves, only in the hope and expectation that the interest and welfare of
the children will be best served. It is common experience that children who are
sent from happy homes to Boarding Institutions and when do not feel easy and
comfortable in the Boarding Institution when they join to such institution,
soon adjust themselves to the new environment and come to like the Boarding
Institution where in the company of fellow students they lead a healthy and
happy life under the guidance and care of competent teachers to the joy of
their parents.
It is also no doubt true that children who
stay at home with their parents and do not go to Boarding Schools may also be
very well disciplined in life and may have a very healthy, happy and normal
growth while staying at home.
Indeed, the majority of 86 children in our
country are brought up in their homes, as very many of the parents are not in a
position to bear the expenses of a Boarding School for their children. The
children grow well and happily in homes under the affectionate care and
guidance of their parents, so long as they continue to enjoy the blessings of a
happy home. A broken home, however, has a different tale to tell for the
children. When parents fall out and start fighting, the peace and happiness of
home life are gone and the children become the worst sufferers. It is indeed
sad and unfortunate that parents do not realise the incalculable harm they may
do to their children by fighting amongst themselves. The husband and the wife
are the persons primarily responsible for bringing the children into this world
and the innocent children become the worst victims of any dispute between their
father and the mother. Human-beings with frailties common to human nature, may
not be in a position to rise above passion, prejudice and weakness. Mind is,
indeed, a peculiar place and the working of human mind is often inscrutable. For
very many reasons it may unfortunately be not possible for the husband and wife
to live together and they may be forced to part company. Any husband and wife
who have irreconciliable differences, forcing them to part company, should,
however, have sense enough to understand and appreciate that they have their
duties to their children. In the interest of the children whom they have
brought into existence and who are innocent, every husband and wife should try
to compose their differences. Even when any husband and wife are not in a
position to reconcile their differences and are compelled to part, they should
part in a way as will cause least possible mischief to the children.
Hard facts of life, however, go to show that
when near relations fall out, the passions and sentiments are so worked up in
them that they lose the right perspective and are not in a position to consider
and judge what will ultimately be for their good. In the instant case, the
disputes between the parties who had been married for years and are responsible
for the birth of two children, have now become so bitter that a number of
proceedings including contempt proceedings by either of them have been
initiated and the unfortunate children have been paraded from Court to Court.
The learned Judges of the High Court have done their best to compose the
differences and have from time to time passed appropriate orders which, if
implemented in the true spirit would have enured to the benefit of all
concerned.
It, however, appears that mainly because of
the attitude of the father, the various orders directinng the children to 87
stay with their father for five working days in the week and with the mother
during the week-ends and also apportionting the period of their stay with the
parents during the vacations passed by the learned Judges of the Bombay High
Court from time to time in the best interests of all parties concerned
including the children, have failed to achieve any useful purpose and have only
resulted in further litigation.
The facts and circumstances of the case
establish that the father out of spite against the mother is not willing to
allow the children to stay with their mother. Obsessed with the idea of having
exclusive control of the children, he has been trying to poison the minds of
the children against the mother with the only object of completely alienating
them from their mother, and in his spiteful obsession, the father fails to
appreciate the very great harm done to the children. It appears that the father
has succeeded in his attempt in alienating the son who, as the records show,
was once deeply attached to the mother and had great affection for her; and,
the son has now become hostile to the mother.
The Respondent husband in view of his bitter
feelings against the appellant, may feel elated and satisfied in having
succeeded in making the son hostile to the mother.
He, however, does not appreciate the very
great stress and strain the son must have undergone in the process of losing
his love for the mother and he also does not understand how unfortunate it is
for any son to be deprived of the affection of his mother and to lose his own
love for the mother. The mother still appears to have a very great affection
for the son. The situation is unfortunate but in this appeal we are not
concerned with the son who is now well over 16 years of age. We only hope that
all concerned will try to restore good relationship amongst them, as we feel
that though the husband and wife have now parted for good, restoration of
friendly relationship amongst all of them will enable them to live in peace and
happiness and allowing the bitterness to continue will only add to their
miseries and troubles.
The effect on the little girl of the
embittered relationship between her parents and the attempt of the father to
poison the mind of the daughter against her mother and to alienate her from the
mother has been simply disastrous. The intelligent and sensible girl,
distressed at the acrimony between her parents, who wanted to spend her time
with each of her parents as she is deeply attached to both, as recorded by
Lentin, J. in his order dated 28.6.1979, was on the verge of near nervous
break-down as noted by the Division 88 Bench in its judgment dated 31st July,
1981. The various orders passed in between which we have set out at length
also, indicate what great mental strain and agony the little girl had suffered
because of the acrimonious dispute between her parents. During this period of
two years, the girl had been under home influence, as she had been staying with
her quarrelling parents in terms of the various orders of the High Court. The
little girl also had been compelled to make her appearances in Court from time
to time. The facts and circumstances clearly establish that the effect of home
influence on the minor in the present case has been to reduce a bright, happy
and sensible child to a state of complete misery; and, the extreme
psychological strain on the sensible mind of the little girl has caused almost
a near nervous breakdown. When the atmosphere in a house, vitiated and rendered
surcharged with tension as a result of bitter squabbles between husband and
wife causes misery and unhappiness to a child, who has to live in constant
psychological strain in such a broken home in view of the bitter relationship
between her parents for each of whom she has great affection, the healthy and
normal growth of the child is bound to be seriously affected. In the interest
and for the welfare of the child in such a case, the child is necessarily to be
removed from such unhealthy environment of a broken home surcharged with
tension. In such a case, the proper and best way of serving the interest and
welfare of the child will be to remove the child from such atmosphere of
acrimony and tension and to put the child in a place where the embittered
relationship between her parents does not easily and constantly affect her
tender mind.
In the facts and circumstances of the present
case the best way to serve the welfare and interest of the child will be to remove
the child from the unhealthy atmosphere at home which has caused a very great
strain on her nerves and has certainly affected her healthy growth, to a place
where she can live a normal healthy life and will have a good opportunity of
proper education and healthy growth. We note with satisfaction that the view
that we have taken is fully supported by the report of the Social Welfare
Expert. The report of the Social Welfare Expert, though not binding on the
Court is entitled to weighty consideration. In the instant case, the Expert has
made a very careful study of the entire matter and has given a well reasoned
report.
Pursuant to the order passed by the Division
Bench of the Bombay High Court the mother got the child admitted into 89
Kimmins Boarding School at Panchgani. By an interim order passed by this Court
in the stay application in this appeal, the child was directed to continue her
stay in the said Boarding institution. By the interim order passed by us on the
conclusion of the hearing we directed that the child should continue her study
in the Boarding School.
On a consideration of all the facts and
circumstances of this case and bearing in mind the paramount consideration of
the welfare of the child, we are of the opinion that the child's interest and
welfare will be best served by removing her from the influence of home life and
by directing that she should continue to remain in the Boarding School. It is
not in dispute that Kimmins Boarding School at Panchgani to which the child has
been admitted is a good institution.
The question of custody of the child must
necessarily be considered from the only view point of the welfare of the child.
In view of our finding that in the instant case the best interest of the child
shall be served by keeping her in a Boarding School away from the unhealthy
atmosphere of strain and tension which she had been undergoing at home, the
question of custody has to be judged in this background.
In that view of the matter it does not really
become necessary for us to go into the question of the merits of the respective
competence of either of the parents. The person to whom the custody of the
child has to be entrusted will necessarily be answerable to the school for
payment of all charges and expenses of the child and also in relation to any
matter concerning the child in her school life. It is clear that the father is
not inclined to allow the child to remain in a Boarding institution. If the
custody be left to him, the father in view of the disinclination to allow the child
to remain in the Boarding institution, may be in a position to create
difficulties for the child for her remaining in the institution by nonpayment
of fees or otherwise. As we have earlier noticed, the father is obsessed with
the idea of obtaining exclusive control of the daughter and keeping the
daughter with him in his house. It is not in dispute and it cannot be disputed
that the mother has a great deal of affection for her daughter and the daughter
is also very fond of the mother. The mother has the welfare of the daughter in
her heart and to serve the best interest of the daughter the mother is prepared
to make any necessary sacrifice. For the welfare of the daughter the mother at
considerable expense had put her in Kimmins Boarding School, Panchgani which is
recognised to be a good institution. She has 90 been paying for all the
expenses of the daughter at the school. She has a steady income out of which
she is in a position to meet all the expenses of her daughter at the school.
The mother also does not suffer from any obsession regarding possession of the
girl and she wants her daughter to lead a healthy normal life essential for her
proper growth and development. The mother is very anxious that the child should
continue to remain in the Boarding School. The girl now aged about 11 years, is
reaching an age when she will need the guidance of her mother. We are,
therefore, of the opinion that the custody of the girl should be given to the
mother. The argument of Mr. Desai that the Bombay High Court went wrong in
refusing the custody of the daughter to the mother mainly on the ground that
the mother is a working girl, is not without force. It also appears that the
High Court failed to properly appreciate that home influence in the present
case had been doing very great damage to the healthy growth of the child and
had brought about a near nervous breakdown of the girl. The argument of Mr.
Bhandare that the girl needs in any event the company of her brother to whom
she is deeply attached, has not impressed us. The girl had been staying with
her father at home and had been enjoying the company of her brother. It does
not, however, appear that the home influence including influence of the
brother, has done her any good. The influence at home, as we have earlier
noticed, has more or less made her a nervous wreck. The further fact also
remains that the brother is now grown up and he may not be there at the house
to give her company. At the time of hearing of the appeal we were given to
understand that the brother was away at Ceylon as a sea cadet and was likely to
return soon. We may also add that by the directions already given by this
Court, all necessary and proper opportunities have been given to the brother to
meet the minor.
In the result the appeal succceds. We set
aside the judgment and order passed by the Bombay High Court allowing the
custody of the child to the father. We pass the following order:- The appeal is
allowed The custody of the child is given to the mother, the appellant before
us. The mother will have the custody of her minor daughter Gospi reaches the
age of 16 years.
91 We also give the following further
directions :-
1. The child Gospi, the daughter of the
appellant and the respondent shall be allowed to continue her education in the
Kimmins High Court School at Panchgani.
2. The parents will be at liberty to meet the
daughter alternatively in accordance with rules and regulations of the school,
the first opportunity of so meeting the daughter being afforded to the father.
3. While the girl is in the school at
Panchgani she will be at liberty to write letters to both her parents and also
to her brother and other relations and friends.
4. When the school closes for any vacation
the girl will live with the father for the first half of the vacation and
thereafter will live with the mother during the secoud half of the vacation.
The father will arrange to bring the girl from his school to his place.
5. Under no circumstances the father will be
entitled to keep the girl Gospi with him beyond the period of the first half of
the vacation without obtaining any prior order from this Court on notice to the
appellant. The father will positively and punctually hand over the child to the
mother on the expiry of the period of the first half of the vacation at the
mother's place of residence.
6. On the expiry of the vacation the mother
is directed to take the child back to the school at Panchgani and entrust her
to the custody of the Principal of the School.
These directions will remain in force, unless
otherwise ordered by this Court, as long as the minor Gospi does not reach the
age of 16 years.
It may be placed on record that after the
judgment had been prepared and made ready, I received a letter purported to
have been written by the minor Gospi. It is indeed a curious letter which has
been written in an inland card. It appears from the inland 92 letter card that
the inland letter card contains the photostat copy of a letter dated 15.5.1982
by her to the Chief Justic of India and the inland letter card also bears a
photostat copy of the Supreme Court address of the Chief Justice of India. In
the very same letter a few lines have been addressed to me in the space left
after the photostat copy of the letter dated 15.5.1982 to the Chief Justice of India
has been completed. The letter addressed to me in this very inland air letter
card is dated 13.6.1982. This inland letter card which contains the photostat
copy of the letter dated 15.5.1982 and the letter dated 13.6.1982 has been put
in an envelope sent to me under registered post with acknowledgement due. An
identical letter written by the girl in the very same manner in another inland
air letter card contained the photostat copy of her letter dated 15.5.1982 to
the Chief Justice of India has also been sent to my learned brother Pathak, J.
The letter to my learned brother is also dated 13.6.1982 and is word for word
the same as the letter to me. The inland letter card in which the exactly
similar letter has been addressed to my learned brother was also put in an
envelope and sent to my brother under registered post. The registered envelopes
of both these two letters addressed to us indicate that the letters were sent
from the address of her father.
We do not propose to set out the contents of
the letter as we feel that the same will not serve any useful purpose and may
only create unnecessary embarrassment and avoidable unpleasantness for the
parties. It has been our earnest endeavour to try to create a situation of
amity and goodwill as far as possible under the circumstances amongst the
parties in the larger interest of the minor girl and to try to avoid saying or
doing anything which may create any unpleasantness or bitterness amongst them.
Suffice it to say that the main purport of these letters is that Gospi does not
want to continue her studies in the boarding school and she wants that we
should interview her and allow her to stay with her father.
We have no manner of doubt that these letters
have been written by Gospi at the instance of her farher. Even if we accept
that Gospi wrote a letter to the Chief Justice of India on 15.5.1982 it is
inconceivable that a girl of Gospi's age could ever think of keeping photostat
copies of the letter and it would also not be possible for a girl of her age to
prepare photostat copies. It is obvious that the letter dated 15.5.1982
addressed to the Chief Justice of India, if the letter had been sent at all,
must have been written by Gospi under the direction of the father who must have
prepared 93 photostat copies. It is interesting to note that when the hearing
of the matter had been concluded and we reserved judgment after passing the
interim order on the conclusion of the hearing these two letters absolutely
identical in every word and detail should be addressed to us. It was indeed not
possible for Gospi to know which particular Bench of this Court was hearing
these matters. The registered envelopes in which the letters have been sent
also indicate that the letters have been sent from the address of the father. These
letters have been written in inland air letter cards containing the photostat
copy of the letter to the Chief Justice of India with the obvious object of
showing that Gospi had earlier written to the Chief Justice about this matter.
We have no doubt that these letters have been addressed to us after the
conclusion of the hearing with the object of lending support to the submissions
made on behalf of the father in course of the hearing and creating an
impression in our mind that we should see Gospi before we deliver our judgment
and we should not place Gospi in the boarding institution and should allow
Gospi to stay with her father. We feel that father has caused these letters to
be addressed to us by his daughter, while the daughter had been staying with
him, particularly in view of the interim order passed by us on the conclusion
of the hearing pending judgment so that we may reconsider our order, while
delivering our judgment and disposing of the matter finally.
We cannot help observing that these letters
go to show that the view that we have taken is clearly right and we can place
no reliance on any kind of wish of Gospi who is not in a position to form any
independent volition of her own and she expresses different kind of wishes in
different situations under the influence and domination of others. As we have
earlier discussed at length in the judgment, it is not possible for the girl in
the situation now prevailing to express any preferential wish which may require
consideration by us to decide her welfare. These letters have the affect of
strengthening the impression in our minds that Gospi's real welfare will be
best served by keeping her in the boarding institution and cannot be served by
allowing her to stay with her father.
Now that the matter is finally over, we ask
the father once again not to persist in his present attitude, as it will do a
lot of harm to his daughter whose sensitive mind, disturbed as it is, is likely
to get destabilised. The father who has his love and affection for the daughter
should appreciate that his daughter is indeed fortunate 94 in being in a
position to receive her education from an institution of repute and that the
education of his daughter at the boarding institution will conduce to her
healthy and happy growth and to her welfare. The father should encourage Gospi
to settle down properly in the boarding institution and to make the best of it.
If we, however, find that the father is still persisting in his present
attitude and is seeking to upset the mind of the girl in properly settling down
at the institution, we may reluctantly have to take appropriate steps in the
interest and for the welfare of the minor girl for whom the Court has now a
special responsibility. We do hope that no such occasion will arise.
We hope that Gospi will realise that she is
having her education in a good boarding institution in an environment which is
otherwise free from unhealthy atmosphere of stress and strain from which she
had been suffering for the last few years. She should also appreciate that her
upbringing and education in this reputed institution in the company of children
of her age and under the guidance of competent teachers will be for her good
and she should try to make the best possible use of her study in the
institution and devote herself to her studies.
We direct that the two letters should be kept
in the records of the proceedings of this appeal.
After we had received the letters from the
girl, a letter dated 5th July 82 addressed by the Principal of the School to
the Assitant Registrar of this Court has been placed before us. In this letter
the Principal has informed the Court that on the expiry of the holidays the
mother brought the girl back to the school and the girl was happy in school and
in the first monthly report for the months of May and June, the girl has done
very well in her studies and secured 65% marks with 7th position. We direct
that this letter of the Principal also to be kept in the records of the
proceedings of this appeal.
S.R. Appeal allowed.
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