Gaurav Nagpal Vs.
Sumedha Nagpal  INSC 1978 (19 November 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5099 OF 2007 Gaurav
Nagpal ...Appellant Versus Sumedha Nagpal ....Respondent (With Criminal Appeal
NO. 491 of 2006)
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Punjab and
Haryana High Court dismissing the appeal filed by the appellant. Learned
District Judge, Gurgaon, had allowed the application filed by the
respondent-wife under Section 6 of the Hindu Minority and Guardianship Act,
1956 (in short the 'Act') alongwith Section 25 of the Guardians and Wards Act,
1890 (in short `Guardian Act').
discords are on the rise at an alarming rate. The sanctity of marriages is
under cloud, which in a great way affects the society at large. Individuals can
in no way be segregated from the society to which they belong. The cultural
heritage of a country is greatly influenced by a pattern of behaviour of
individuals and more so in matters of matrimony.
Home can be a
wonderful place to live. But continuous fights between the partners of a
marriage disturb the atmosphere at home and create havoc on the members of a
family. One does not need a mansion to lead a happy marital home. The
foundation of a happy home is love, sharing of joys and sorrows, and not in
that sense bricks and concrete. There should be cementing of hearts and not
cementing of floors and walls. Life is a series of awakening. The happiness
which brings enduring worth to life is not the superficial happiness that is
dependent on circumstances. Ultimately, in the fight between the partners, the
victims more often than not are the children.
It is unfortunate
that in their fight more often on account of egoism the children suffer, more
particularly when the child is a girl. It is not uncommon to see that at the
time of negotiation of marriage, the boy's 2 parents shy away because the girl
is from a broken family and/or the parents are divorced. The child has
practically no role in breaking of the marriage, but he or she suffers. The
marital discord sometimes reaches a stage where the parties are unmindful of
what psychological, mental and physical impact it has on children. It is worse
when there is a single child, be it a boy or a girl. The case at hand is a
classic example where the child has become the focus of controversy. Bitter
legal fights have been fought and the corridors of several courts including the
Supreme Court have been travelled by the parties. Efforts have been made
unsuccessfully to bring about conciliation between the parties. The best way to
make children good said a learned author is to make them happy.
brief reference to the factual aspects leaving out the maize of unnecessary
facts would suffice.
The parties got
married on 14.10.1996 and the child from their wedlock was born on 15.11.1997.
According to the appellant, respondent abandoned the child on 8.8.1999 but she
filed a Habeas Corpus Petition before the Delhi High Court on 25.8.1999. The
High Court dismissed the petition on the ground of territorial jurisdiction.
Respondent filed a Special Leave Petition against the High Court's order dated
14.1.2000 and also filed a Writ Petition under Article 32 of the Constitution
of India, 1950 (in short the `Constitution'). This Court permitted interim
custody of the 20 months old child with the appellant. The respondent filed a
maintenance petition before the Delhi High Court and also a petition for
guardianship before a learned Additional District Judge, Jhajjar. The same was
later withdrawn and the petition was filed in the District Court, Gurgaon.
Appellant filed his
reply opposing the application on the ground that the respondent had deserted
the child. By order dated 2.5.2002, learned Civil Judge dismissed the
application for interim custody holding that any disturbance by changing the
custody of the child would traumatize him and shall not be conducive to the
welfare of the child and it would affect the mental balance of the child who
had developed love and affection for his father and his family members. A
Revision Petition was filed by the respondent before the High Court. The High
Court granted the visitation rights to the respondent by order 30.9.2002 but
continued the interim custody with the appellant. The visitation rights fixed
by the Court were in the following terms:
(a) 9 a.m. to 5 p.m.
on every last Saturday of the month.
(b) For a week in the
aforesaid manner in summer vacations.
4 (c) One day in
Dussehra holidays (9 a.m. to 5 p.m.
(d) One day in Diwali
Holidays (9 a.m. to 5 p.m.).
A contempt petition
was filed for violation of the terms by the appellant.
The learned District
Judge, Gurgaon allowed the petition of the respondent and granted custody of
the child to the respondent. Appellant preferred an appeal before the High
Court against the order dated 6.1.2007. The High Court passed an interim order
staying the order of custody to the respondent but continued the order with
respect to visitation rights. By order dated 13.7.2007 the appeal filed by the
appellant was dismissed. Though the initial order of the High Court was stayed,
subsequently by order dated 29.10.2007 the visitation rights were continued.
to the appellant, the order of the High Court is clearly wrong on several
counts. The order passed by the High Court dated 9.3.2005 convicting the
appellant for contempt of court has also been assailed in Criminal Appeal
No.491 of 2006. The Trial Court came to hold that since the child had remained
with the appellant for a period of 7 years, he appears to have made every
possible effort to obtain the custody of a minor. The learned District Judge
took note of the fact that taking of the child from his father's custody may
adversely affect the sentiments and upbringing of the child, but at the same
time the child should not be deprived the mother's home.
of the appellant before the High Court was that the court below had not held
that he suffers from any disability in his role as a father and, therefore,
there was no comprehensive reason for the Court to direct custody of the child
to be entrusted to the respondent. The fact that the respondent was the mother
cannot be the sole basis for allowing the petition. While considering the
prayer for the custody of the child, several factors including the relationship
between the parties and the minor are secondary. It was submitted that the
minor was abandoned when he was about one year and nine months old. Thereafter,
in the garb of seeking custody several rounds of litigation were unleashed.
reference to Section 6 of the Act it was submitted that the father was the
legal guardian and the welfare of the minor child lies with the appellant. He
has a large income and resides in a joint family where the minor is taken care
of by the appellant, his mother, brother and brother's wife and his three
nephews. The warmth of the joint family has led to an all round development of
the child and by taking him away from those surroundings can deprive him of
love and affection. The appellant lives in a posh locality and the house is
built on nearly 3000 sq. yards whereas the respondent resides with her parents
in a two-bed room flat. Apart from that the appellant has a good educational
background and since the child has been residing for the last more than seven
years with him, the courts should not have directed handing over custody to the
was further pointed out that the primary focus being the welfare of the child,
the respondent should have brought on record as to how with her meagre income
she would be able to provide good education to the child. It was pointed out
that the child is afraid of his mother and wrenching him from the custody of
the father would lead to irreparable mental trauma.
far as the contempt proceedings were concerned it was submitted that the
appellant is not a criminal and though certain cases have been lodged against
him they are related to some technical violations.
respondent's stand on the other hand was that the appellant had shifted his
residence to Bahadurgarh by deception and fraud. From there the child was
snatched from her custody on 1.8.1999. Since that date she has approached
various courts to seek custody of the child and for redressal of her
grievances. The respondent got order relating to interim custody. For failure
to comply with the orders of interim custody, the appellant was convicted by
the High Court and sentenced to one month's imprisonment and though the order
of sentence has been stayed, the order of conviction still continues to be in
force. The appellant's conduct in disobeying the orders passed by the courts
discloses that he has no respect or any regard for the rule of law. It was
further submitted that the child's welfare cannot be weighed in terms of money,
facilities, area of a house or the financial might of either the father or the
mother. It was pointed out that respondent had no option but to reside with her
parents and is a teacher in Salwan Public School. Merely because she was
residing with the parents cannot disqualify her from looking after her child.
She may not be as financially sound as the appellant, but that alone cannot
disentitle her from the custody of the child.
She has stated that
she was drawing a salary of Rs.13,000/-p.m. (which is likely to be
substantially increased) and was receiving Rs.25,000/- as maintenance pursuant
to the order passed by the Delhi High Court and she can look after the
financial needs for educating the child. She resides in Gulabi Bagh which is
well located and surrounded and there is a parknearby. The colony has 8-10
parks and it is a better location where the child can be well developed.
Therefore, it cannot be said that the respondent resides in an area which is
unsuitable to the minor child.
is also pointed out that the appellant has no fixed residence. He shifted from
Delhi to Bahadurgarh and then Gurgaon and back to Delhi in a house in Sainik
farm where the appellant claims to reside. Same is owned by his brother. It has
been a deliberate attempt to poison the mind of the child. Negative facts have
been fed into the child's mind against the respondent. It was further submitted
that if sufficient time is given the child would overcome any tutored
prejudice. Though, there was a claim that the relatives would provide healthy
environment to the child, none of them stepped into the witness box and
affidavits filed much later cannot be a substitute for the evidence in Court.
The High Court took note of Section 13 of the Act which is the foundation for
the custody of the child. The welfare of the minor is of paramount
consideration. The High Court looking into the materials placed observed as
"In view of the
facts, noticed herein before, the question that exercises this Court's mind is
should the child be permitted to stay with a father, who inculcates fear and
apprehension in the mind of minor, against his mother and thwarts court orders
with impunity. The answer to the above questions, in my 9 opinion, must be in
the negative. The appellant, cannot wish away his role, in the minor harboring
such an irrational fear towards the mother. I am conscious of the fact that
directing the custody of the child to the respondent, may result in a degree of
trauma. However, the daily trauma the child appears to undergo while being
tutored against his mother would be far in excess of the trauma likely to be
faced while entrusting to the respondent. The minor child must be allowed to
grow up with a healthy regard for both parents. A parent in this case, the
appellant, who poisons the minor's mind against the other parent cannot
possibly be stated to act for the welfare of the minor."
is submitted that the High Court was not oblivious of the financial status of
the respondent. The High Court also found that large area of accommodation and
financial affluence cannot be a determinative factor.
Therefore, the High
Court did not find any scope for interference with the order of the court
support of the appeal, learned counsel for the appellant re-iterated the stand
taken before the High Court. It was additionally submitted that the child's
reluctance to go with the mother should have been duly considered by the High
Court. Apparently, that has not been done.
reliance is placed on a decision of this Court in Mausami Moitra Ganguli v.
Jayant Ganguli (JT 2008 (6) SC 634) wherein this Court on 12th May, 2008
dismissed the mother's appeal, according to appellant, on identical facts.
Respondent, who appeared in person, highlighted the stands taken by her before
the learned District Judge and the High Court. The main plank of appellant's
argument is to continue custody with the father.
The appellant has
managed to retain the custody by flouting the order passed by this Court. It is
pointed out by the respondent that for flouting the orders of the Court the
appellant has been convicted for contempt of court which is the subject matter
of challenge in criminal appeal. It was not the first instance when the
appellant flouted the order. It is pointed out that the factual scenario in
Mausami Moitra's case (supra) was entirely different. In that case, courts
below had analysed the material to conclude that it would be desirable to give
custody to the father. The factual scenario is entirely different here.
is to be noticed as done at the threshold that in the present dispute the child
has become the victim.
is pointed out by the respondent that she was not aware that the appellant was
a divorcee. The first wife was ill treated by the appellant and his relatives
on account of alleged meagre dowry. She was eventually ousted from the
matrimonial home alongwith a minor child. Since the appellant demanded custody
of the child and threatened the respondent, information was lodged at the
Police Station. On 1.8.1999 while the respondent was attending to household
chores, the appellant whisked away their minor child and sent him to some
unknown place at Delhi. The respondent was bundled into a car and kept in
illegal confinement at the house of one Sh. Bal Kishan Dang from where she
escaped on 8.8.1999. She sent telegrams to various authorities and a formal
complaint was lodged with the Police Station, Sarai Rohilla alleging wrongful
confinement and kidnapping of the child. In the meanwhile, the respondent's
father lodged a complaint with the police at Bahadurgarh. The appellant was
arrested and produced before the Court at Bahadurgarh. An application was filed
before the Sub-Divisional Judicial Magistrate, Bahadurgarh, requesting the
court to hold an inquiry, as to the whereabouts of the minor child. The
Magistrate passed an order directing the appellant to produce the child on the
next date of hearing. However, as the respondent could not reach the court in
time, the Magistrate granted bail to the appellant and declined the prayer for
production of the minor child. Thereafter, the respondent, filed an application
for issuance of a writ in the nature of Habeas Corpus before the High Court at
Delhi. Despite issuance of notice, the appellant failed to produce the child.
Eventually on 11.1.2000, the petition was dismissed for want of territorial
jurisdiction. The respondent, thereafter, filed a Special Leave Petition before
this Court, as also a writ petition under Article 32 of the Constitution. Both
these petitions were dismissed by this Court, directing the respondent, to
avail her remedy before the Guardian Court.
thereafter filed a petition under Section 6 of the Act, praying for the custody
of the minor child. The respondent, prayed before the Trial Court that as she
was the mother of a minor child and as she did not suffer from any disability,
the appellant be directed to hand over the custody of the minor child. It was
averred in the petition that though the appellant claimed to be the owner of
various companies, he had committed various frauds.
appellant played fraud with the respondent by concealing the fact that he was
earlier married to one Alka Nagpal and his marriage broke as he is supposed to
have similarly tortured and harassed his wife as was made out to the
respondent. It is the respondent's case that as she was unable to bear the
physical and mental agony, Alka Nagpal committed suicide within six months of
her marriage. It is also pointed out that the criminal cases involving offences
punishable under Sections 498A, 406, 323, 506, 343 and 109 IPC are pending in
the CBI Court, Patiala against the appellant and his family members. It is also
pointed out that the child was shifted from one school to another at various
places in Haryana and Delhi.
was pointed out that the conduct of the appellant was noted by the Local
Commissioner of Police in his report on 10.10.2003 who committed repeated
defaults in bringing the child on various dates. The High Court noted that fact
and came to a conclusion that the appellant had willfully disobeyed the orders
of this Court and had poisoned the mind of the child against the mother. It was
further noted that the child could only meet the mother with the help of a duty
shall first deal with law relating to custody in various countries.
Halsbury's Laws of England, Fourth Edition, Vol. 24, para 511 at page 217 it has
"Where in any
proceedings before any court the custody or upbringing of a minor is in
question, then, in deciding that question, the court must regard the minor's
welfare as the first and paramount consideration, and may not take into consideration
whether from any other point of view the father's claim in respect of that
custody or upbringing is superior to that of the mother, or the mother's claim
is superior to that of the father."
It has also been stated that if the minor is of any age to exercise a choice,
the court will take his wishes into consideration. (para 534; page 229).
a writ of habeas corpus is sought for custody of a minor child. In such cases
also, the paramount consideration which is required to be kept in view by a
writ-Court is `welfare of the child'.
Habeas Corpus, Vol. I, page 581, Bailey states;
of the father may be as stainless as crystal; he may not be afflicted with the
slightest mental, moral or physical disqualifications from superintending the
general welfare of the infant; the mother may have been separated from him
without the shadow of a pretence of justification; and yet the interests 15 of
the child may imperatively demand the denial of the father's right and its
continuance with the mother. The tender age and precarious state of its health
make the vigilance of the mother indispensable to its proper care; for, not
doubting that paternal anxiety would seek for and obtain the best substitute
which could be procured yet every instinct of humanity unerringly proclaims
that no substitute can supply the place of her whose watchfulness over the
sleeping cradle, or waking moments of her offspring, is prompted by deeper and
holier feeling than the most liberal allowance of nurses' wages could possibly
is further observed that an incidental aspect, which has a bearing on the
question, may also be adverted to. In determining whether it will be for the
best interests of a child to grant its custody to the father or mother, the
Court may properly consult the child, if it has sufficient judgment.
Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J.
The dominant matter
for the consideration of the Court is the welfare of the child. But the welfare
of the child is not to be measured by money only nor merely physical comfort.
The word `welfare'
must be taken in its widest sense. The moral or religious welfare of the child
must be considered as well as its physical well-being. Nor can the tie of
affection be disregarded.
in the United States is also not different. In American Jurisprudence, Second
Edition, Vol. 39; para 31; page 34, it is stated;
"As a rule, in
the selection of a guardian of a minor, the best interest of the child is the
paramount consideration, to which even the rights of parents must sometimes
In para 148; pp.280-81; it is stated;
where the writ of habeas corpus is prosecuted for the purpose of determining
the right to custody of a child, the controversy does not involve the question
of personal freedom, because an infant is presumed to be in the custody of
someone until it attains its majority. The Court, in passing on the writ in a
child custody case, deals with a matter of an equitable nature, it is not bound
by any mere legal right of parent or guardian, but is to give his or her claim
to the custody of the child due weight as a claim founded on human nature and
generally equitable and just. Therefore, these cases are decided, not on the
legal right of the petitioner to be relieved from unlawful imprisonment or
detention, as in the case of an adult, but on the Court's view of the best interests
of those whose welfare requires that they be in custody of one person or
another; and hence, a court is not bound to deliver a child into the custody of
any claimant or of any person, but should, in the exercise of a sound
discretion, after careful consideration of the facts, leave it in such custody
as its welfare at the time appears to require.
In short, the child's
welfare is the supreme consideration, irrespective of the rights and wrongs of
its contending parents, although the natural rights of the parents are entitled
17 An application by
a parent, through the medium of a habeas corpus proceeding, for custody of a
child is addressed to the discretion of the court, and custody may be withheld
from the parent where it is made clearly to appear that by reason of unfitness
for the trust or of other sufficient causes the permanent interests of the
child would be sacrificed by a change of custody. In determining whether it
will be for the best interest of a child to award its custody to the father or
mother, the Court may properly consult the child, if it has sufficient
Howarth v. Northcott, 152 Conn 460 : 208 A 2nd 540 : 17 ALR 3rd 758; it was
corpus proceedings to determine child custody, the jurisdiction exercised by
the Court rests in such cases on its inherent equitable powers and exerts the
force of the State, as parens patriae, for the protection of its infant ward,
and the very nature and scope of the inquiry and the result sought to be
accomplished call for the exercise of the jurisdiction of a court of
It was further
of the forms of habeas corpus in a child custody case is not for the purpose of
testing the legality of a confinement or restraint as contemplated by the
ancient common law writ, or by statute, but the primary purpose is to furnish a
means by which the court, in the exercise of its judicial discretion, may
determine what is best for the welfare of the child, and the decision is
reached by a consideration of the equities involved in the welfare of the
child, against 18 which the legal rights of no one, including the parents, are
allowed to militate".
was also indicated that ordinarily, the basis for issuance of a writ of habeas
corpus is an illegal detention; but in the case of such a writ sued out for the
detention of a child, the law is concerned not so much with the illegality of
the detention as with the welfare of the child.
legal position in India follows the above doctrine. There are various statutes
which give legislative recognition to these well-established principles. It
would be appropriate if we examine some of the statutes dealing with the
situation. Guardians Act, consolidates and amends the law relating to guardians
and wards. Section 4 of the said Act defines "minor" as a person who
has not attained the age of majority. "Guardian" means a person
having the care of the person of a minor or of his property, or of both his
person and property. "Ward" is defined as a minor for whose person or
property or both, there is a guardian. Chapter II (Sections 5 to 19 of
Guardians Act) relates to appointment and declaration of guardians. Section 7
thereof deals with `power of the Court to make order as to guardianship' and
reads as under:
7. Power of the Court
to make order as to guardianship.-(1) Where the Court is satisfied that it is
for the welfare of a minor that an order should be made-- (a) appointing a
guardian of his person or property, or both, or (b) declaring a person to be
such a guardian, the Court may make an order accordingly.
(2) An order under
this section shall imply the removal of any guardian who has not been appointed
by will or other instrument or appointed or declared by the Court.
(3) Where a guardian
has been appointed by will or other instrument or appointed or declared by the
Court, an order under this section appointing or declaring another person to be
guardian in his stead shall not be made until the powers of the guardian
appointed or declared as aforesaid have ceased under the provisions of this
8 of the Guardians Act enumerates persons entitled to apply for an order as to
guardianship. Section 9 empowers the Court having jurisdiction to entertain an
application for guardianship. Sections 10 to 16 deal with procedure and powers
of Court. Section 17 is another material provision and may be reproduced;
"17. Matters to
be considered by the Court in appointing guardian.-(1) In appointing or
declaring the guardian of a minor, the Court shall, subject to the provisions
of this section, be guided by what, consistently with the law to which the
minor is subject, appears in the circumstances to be for the welfare of the
20 (2) In
considering what will be for the welfare of the minor, the Court shall have
regard to the age, sex and religion of the minor, the character and capacity of
the proposed guardian and his nearness of kin to the minor, the wishes, if any,
of a deceased parent, and any existing or previous relations of the proposed
guardian with the minor or his property.
(3) If the minor is
old enough to form an intelligent preference, the Court may consider that
***** (5) The Court
shall not appoint or declare any person to be a guardian against his will.
19 prohibits the Court from appointing guardians in certain cases. Chapter III
(Sections 20 to 42) prescribes duties, rights and liabilities of guardians.
Act is another equally important statute relating to minority and guardianship
among Hindus. Section 4 defines "minor" as a person who has not
completed the age of eighteen years. "Guardian" means a person having
the care of the person of a minor or of his property or of both his persons and
property, and inter alia includes a natural guardian. Section 2 of the Act
declares that the provisions of the Act shall be in addition to, and not in
derogation of 1890 Act.
6 enacts as to who can be said to be a natural guardian. It reads thus;
Natural guardians of
a Hindu Minor.--The natural guardians of a Hindu minor, in respect of the
minor's person as well as in respect of the minor's property (excluding his or
her undivided interest in joint family property), are-- (a) in the case of a
boy or an unmarried girl--the father, and after him, the mother; provided that
the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother;
(b) in the case of an
illegitimate boy or an illegitimate unmarried girl--the mother, and after her,
(c) in the case of a
married girl--the husband:
Provided that no
person shall be entitled to act as the natural guardian of a minor under the
provisions of this section -- (a) if he has ceased to be a Hindu, or (b) if he
has completely and finally renounced the world becoming a hermit (vanaprastha)
or an ascetic (yati or sanyasi).
section, the expressions "father"
"mother" do not include a step-father and a step- mother.
8 enumerates powers of natural guardian. Section 13 is extremely important
provision and deals with welfare of a minor. The same may be quoted in extenso;
22 13. Welfare of
minor to be paramount consideration.
(1) In the
appointment or declaration of any person as guardian of a Hindu minor by a
court, the welfare of the minor shall be the paramount consideration.
(2) No, person shall
be entitled to the guardianship by virtue of the provisions of this Act or of
any law relating to guardianship in marriage among Hindus, if the court is of
opinion that his or her guardianship will not be for the welfare of the minor.
26 of the Hindu Marriage Act, 1955 provides for custody of children and
declares that in any proceeding under the said Act, the Court could make, from
time to time, such interim orders as it might deem just and proper with respect
to custody, maintenance and education of minor children, consistently with
their wishes, wherever possible.
principles in relation to the custody of a minor child are well settled. In
determining the question as to who should be given custody of a minor child,
the paramount consideration is the `welfare of the child' and not rights of the
parents under a statute for the time being in force.
aforesaid statutory provisions came up for consideration before Courts in India
in several cases. Let us deal with few decisions wherein the courts have
applied the principles relating to grant of custody of minor children by taking
into account their interest and well-being as paramount consideration.
Saraswathibai Shripad v. Shripad Vasanji, ILR 1941 Bom 455 :
AIR 1941 Bom 103; the
High Court of Bombay stated;
"It is not the
welfare of the father, nor the welfare of the mother that is the paramount consideration
for the Court. It is the welfare of the minor and the minor alone which is the
Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court held that
object and purpose of 1890 Act is not merely physical custody of the minor but
due protection of the rights of ward's health, maintenance and education. The
power and duty of the Court under the Act is the welfare of minor. In
considering the question of welfare of minor, due regard has of course to be
given to the right of the father as natural guardian but if the custody of the
father cannot promote the welfare of the children, he may be refused such
in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544, this
Court reiterated that the only consideration of the Court in deciding the
question of custody of minor should be the welfare and interest of the minor.
And it is the special duty and responsibility of the Court. Mature thinking is
indeed necessary in such situation to decide what will enure to the benefit and
welfare of the child.
because there is no defect in his personal care and his attachment for his
children--which every normal parent has, he would not be granted custody.
Simply because the father loves his children and is not shown to be otherwise
undesirable does not necessarily lead to the conclusion that the welfare of the
children would be better promoted by granting their custody to him. Children
are not mere chattels nor are they toys for their parents. Absolute right of
parents over the destinies and the lives of their children, in the modern
changed social conditions must yield to the considerations of their welfare as
human beings so that they may grow up in a normal balanced manner to be useful
members of the society and the guardian court in case of a dispute between the
mother and the father, is expected to strike a just and proper balance between
the requirements of welfare of the minor children and the rights of their respective
parents over them.
Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698, this
Court held that Section 6 of the Act constitutes father as a natural guardian
of a minor son. But that provision cannot supersede the paramount consideration
as to what is conducive to the welfare of the minor. [See also Elizabeth
Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42; Chandrakala Menon (Mrs.)
v. Vipin Menon (Capt), (1993) 2 SCC 6].
the court is confronted with conflicting demands made by the parents, each time
it has to justify the demands. The Court has not only to look at the issue on
legalistic basis, in such matters human angles are relevant for deciding those
issues. The court then does not give emphasis on what the parties say, it has
to exercise a jurisdiction which is aimed at the welfare of the minor. As
observed recently in Mousami Moitra Ganguli's case (supra), the Court has to
due weightage to the child's ordinary contentment, health, education,
intellectual development and favourable surroundings but over and above
physical comforts, the moral and ethical values have also to be noted. They are
equal if not more important than the others.
word `welfare' used in Section 13 of the Act has to be construed literally and
must be taken in its widest sense. The moral and ethical welfare of the child
must also weigh with the Court as well as its physical well being. Though the
provisions of the special statutes which govern the rights of the parents or
guardians may be taken into consideration, there is nothing which can stand in
the way of the Court exercising its parens patriae jurisdiction arising in such
trump card in appellants' argument is that the child is living since long with
the father. The argument is attractive. But the same overlooks a very
significant factor. By flouting various orders, leading even to initiation of
contempt proceedings, the appellant has managed to keep custody of the child.
He can not be a beneficiary of his own wrongs. The High Court has referred to
these aspects in detail in the impugned judgments.
conclusions arrived at and reasons indicated by the High Court to grant custody
to the mother does not in our view suffer from any infirmity.
It is true that
taking the child out of the father's custody may cause some problems, but that
is bound to be neutralized.
counsel for the appellant submitted that the child's education is of paramount
importance and the father is spending good amount of money for providing him
excellent education, and the mother does not have the financial affluence as
the appellant claims to have. But that can be taken care of if father is asked
to pay the educational expenses of the child in addition to the maintenance
being paid to the respondent. But at the same time it cannot be overlooked that
the father needs to have visitation rights of the child.
partial modification of the order passed by the District Judge and the High
Court, we direct that the visitation rights shall be in the following terms:
(1) During long
holidays/vacations covering more than two weeks the child will be allowed to be
in the company of the father for a period of seven days.
28 (2) The period
shall be fixed by the father after due intimation to the mother who shall
permit the child to go with the father for the aforesaid period.
(3) For twice every
month preferably on Saturday or Sunday or a festival day, mother shall allow
the child to visit the father from morning to evening. Father shall take the
child and leave him back at the mother's place on such days.
appeal is dismissed subject to aforesaid modifications. Costs fixed at
CRIMINAL APPEAL NO.
491 OF 2006
we find that the order of the High Court does not suffer from any infirmity but
taking into account the fact that we have dismissed the connected Civil appeal
relating to the custody of the child, while upholding the finding of guilt for
disobeying the Court's order and committing contempt of Court, we restrict the
sentence to the period already undergone.
saying omega, we propose to make some general observations.
It is a disturbing
phenomenon that large number of cases are flooding the courts relating to
divorce or judicial separation. An apprehension is gaining ground that the
provisions relating to divorce in the Hindu Marriage Act, 1950 (in short the
`Marriage Act') has led to such a situation. In other words, the feeling is
that the statute is facilitating breaking of homes rather than saving them.
This may be too wide a view because actions are suspect.
But that does not
make the section invalid. Actions may be bad, but not the Section. The
provisions relating to divorce categorise situations in which a decree for
divorce can be sought for. Merely because such a course is available to be
adopted, should not normally provide incentive to persons to seek divorce,
unless the marriage has irretrievably broken. Effort should be to bring about
conciliation to bridge the communication gap which lead to such undesirable
proceedings. People rushing to courts for breaking up of marriage should come
as a last resort, and unless it has an inevitable result, courts should try to
bring about conciliation. The emphasis should be on saving marriage and not
breaking it. As noted above, this is more important in cases where the children
bear the brunt of dissolution of marriage.
must not lose faith in humanity. It is an ocean; if a few drops of the ocean
are dirty, the ocean does not become dirty. If nothing ever went wrong in one's
life, he or she would never have a chance to grow stronger.
One should never
forget that today well lived makes every yesterday a dream of happiness and
tomorrow a vision of hope. Marital happiness depends upon mutual trust, respect
and understanding. A home should not be an arena for ego clashes and
misunderstandings. There should be physical and mental union. Marriage is
something, Ibsen said in "The League of Youth" you have to give your
whole mind to. If marriages are made in Heaven as Tennyson said in Ayloner's
Field, why make matrimonial home hell is a big question.
appeals are dismissed subject to the aforesaid modifications.
(Dr. ARIJIT PASAYAT)
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