Anjali Kapoor Vs.
Rajiv Baijal [2009] INSC 787 (17 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2628 OF 2009 (Arising out
of SLP(C) No. 17184 of 2007) Smt. Anjali Kapoor ..........Appellant Versus
Rajiv Baijal ........Respondent
H.L. Dattu,J.
Leave granted.
1.
This
appeal is directed against the judgment and order passed by the High Court of
Judicature at Indore in Miscellaneous Appeal No. 750 of 2004 dated 03.08.2007.
By the impugned judgment, the High Court has directed that the custody of the
child be handed over to the respondent/father.
2.
The
facts of case in brief are: - the respondent/Rajiv Baijal, had got married to
the appellant's daughter/Meghana on 16.01.1998 and lived together in Pune
(Maharashtra). Smt. Meghana went to Indore to the appellant's residence for delivery
of the child. She was admitted in Noble Hospital, Indore and gave birth to a
female child on 20.05.2001, but she did not survive to see the new born baby.
As the child was born premature, she was kept in incubator in the hospital for
nearly 45 days.
After discharge from
the hospital, the infant was brought to the residence of the appellant, and she
was named Anagh. Add to the agony, just in a span of two months, appellant lost
her husband also on 29.07.2001.
1.
2.
3.
The
Respondent herein filed an application under Guardian and Wards Act before the
Family Court, inter-alia asserting that being the father of the child Anagh, he
is her natural guardian and therefore, entitled to the custody of the child. In
support of the claim made, the respondent had asserted before the Family Court
that Anagh was not properly looked after by the appellant and it was perilous
for the child to continue in the custody of the appellant. The respondent had
also contended that after the child was brought to the residence of the
appellant he was repeatedly requesting the appellant and her family members to
hand over the custody of the child to him, since the appellant is unable to
take care of the welfare of the minor child.
3.
4.
In
the reply filed, the appellant had contended, that, the respondent had not come
to see his daughter even once when the child was in the intensive care unit in
the hospital. She had further contended that the respondent is living
separately from his parents and he has to be away from his home town most of
the time in a month in view of the nature of the job he is involved in. It was
also contended that the financial position of the respondent is not good and he
had taken loans from several persons, and in order to repay the same, on many
occasions, he had asked for financial help from the appellant and her family
members. In a nutshell, her claim before the Family Court was that it is not
conducive for the welfare of the child to be in the company of the respondent.
5.
The
Family Court, Indore in its order dated 18.3.2004, has observed that, it cannot
be concluded that the respondent although has borrowed money from several
persons, will not be in a position to bring up her daughter and bear her
educational expense. The Court has also taken note of the fact that the
child/Anagh is taken care of by appellant's brother-in-law, who has two
grown-up children, and therefore, it cannot be said that the respondent will
not be in a position to take care of the welfare of the child. Therefore,
giving priority to the welfare of minor child, it is advisable to give custody
of minor child - Anagh to the respondent, where she will be looked after well
by respondent and his family members. Aggrieved by the said order, the
appellant had carried the matter to the High Court, by filing Misc. Appeal
No.750 of 2004.
6.
The
High Court in its judgment has held, that there are no compelling reasons on
the basis whereof the custody of the child should be denied to her
father/respondent. Respondent has been making efforts right from the infancy of
the child for guardianship of the child which was strongly resisted by his
mother-in-law. The Court has also taken note of the fact that, the appellant
has lost her husband and has, therefore, suffered a great financial set back.
Therefore, for better upbringing and welfare of the child, her custody should
be entrusted to her father. Aggrieved by the said judgment, appellant is before
us.
7.
Notice
was ordered to be issued to the respondent on 28.09.2007 to appear before the
court on 16.10.2007. Since the same was returned unserved, a fresh notice came
to be ordered. Dasti, in addition was also permitted for effecting service of
the special leave petition on the sole respondent. In view of the affidavit of
dasti notice filed by learned counsel for petitioner, he was permitted to take
out notice of the special leave petition by publishing the same in two
newspapers which has wide circulation in Pune (Maharashtra). Even this was
carried out by the petitioner by publishing the notice of special leave
petition in "Sandhyand" and "Free Press" which has wide
circulation in Pune (Maharashtra). In spite of such publication, the respondent
has not appeared before this court either in person or through his learned
counsel. Therefore, while deciding this appeal, we did not have the assistance
of either the respondent nor his learned counsel.
8.
The
learned counsel for the appellant would contend, that, the appellant is
financially sound as she has a flourishing garment business and is residing in
a joint family. Presently Anagh is being looked after by the appellant's
family, and she is studying in a well known public school and is leading a
happy life. The counsel would further contend, that, the respondent has meager
income of Rs. 5,500 p.m. and will not be able to take good care of Anagh. It is
further submitted that the respondent's mother is not well and also his father
is suffering from High Blood Pressure and Asthama and they will also not be in
a position to help the respondent to take care of the daily needs of the minor
child. The counsel would further contend that respondent and any of his family
members or relative, after passing of the impugned order till date never
contacted the appellant to enquire about the welfare of Anagh. It is further
submitted that the respondent has lost interest not only in the case but also
in his daughter, since he has contracted second marriage sometime during the
year 2007.
9.
The
question for our consideration is, whether in the present scenario would it be
proper to direct the appellant to hand over the custody of the minor
child/Anagh to the respondent.
10.
Under
the Guardian and Wards Act, 1890, the father is the guardian of the minor child
until he is found unfit to be the guardian of the minor female child. In
deciding such questions, the welfare of the minor child is the paramount
consideration and such a question cannot be decided merely based upon the
rights of the parties under the law (See Sumedha Nagpal v. State of Delhi,
(2000) 9 SCC 745).
11.
In
the case of Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court
has observed that, the principle on which the Court should decide the fitness
of the guardian mainly depends on two factors:
12.
The
father's fitness or otherwise to be the guardian, and (ii) the interests of the
minors. This Court considering the welfare of the child also stated that, 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
have, 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."
(AIR 1987 SC 3), this
Court has observed that whenever a question arises before Court pertaining to
the custody of the minor child, the matter is to be decided not on
consideration of the legal rights of the parties but on the sole and
predominant criterion of what would best serve the interest and welfare of the
child.
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13.
At
this stage, it may be useful to refer to the decision of Madras High Court, to
which reference is made by the High Court in the case of Muthuswami Moopanar
(AIR 1935 Madras 195), wherein the Court has observed, that, if a minor has for
many years from a tender age lived with grand parents or near relatives and has
been well cared for and during that time the minor's father has shown a lack of
interest in the minor, these are circumstances of very great importance, having
bearing upon the question of the interest and welfare of the minor and on the
banafide of the petition by the father for their custody.
14.
In
our view, the observations made by the Madras High Court cannot be taken
exception by us. In fact those observations are tailored made to the facts
pleaded by the appellant in this case. We respectfully agree with the view
expressed by the learned Judges in the aforesaid decision.
15.
In
McGrath (infants), Re (1893) 1 Ch 143: 62 LJ Ch 208 (CA), it was observed that,
"... The dominant matter for the consideration of the court is the welfare
of the child. But the welfare of a child is not to be measured by money only,
or by physical comfort only. 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 ties of affection be disregarded."
16.
In
American Jurisprudence, 2nd Edn., Vol. 39, it is stated that 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
judgment."
17.
In
Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, The New Zealand
Court (cited by British Law Commission, Working Paper No. 96) stated that
"welfare is an all-encompassing word. It includes material welfare; both
in the sense of adequacy of resources to provide a pleasant home and a
comfortable standard of living and in the sense of an adequacy of care to
ensure that good health and due personal pride are maintained. However, while
material considerations have their place they are secondary matters. More
important are the stability and the security, the loving and understanding care
and guidance, the warm and compassionate relationships that are essential for
the full development of the child's own character, personality and
talents."
18.
Bearing
these factors in mind, we proceed to consider as to who is fit and proper to be
the guardian of the minor child Anagh in the facts and circumstances of this
case. In the present case, the appellant is taking care of Anagh, since her
birth when she had to go through intensive care in the hospital till today. The
photographs produced by her along with the petition, which is not disputed by
the other side would clearly demonstrate, the amount of care, affection and the
love that the grandmother has for the child having lost only daughter in a
tragic circumstances. She wants to see her daughter's image in her grand child.
She has bestowed her
attention throughout for the welfare of reminiscent of her only daughter, that
is the minor child which is being dragged from one end to another on the so
called perception of judicial precedents and the language employed by the legislatures
on the right of natural guardian for the custody of minor child.
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Anagh
is staying with the appellant's family and is also studying in one of the
reputed school in Indore. It must be stated that the appellant has taken proper
care and attention in upbringing of the child, which is one of the important
factor to be considered for the welfare of the child.
Anagh is with the
appellant right from her childhood which has resulted into a strong emotional
bonding between the two and the appellant being a woman herself can very well
understand the needs of the child. It also appears that appellant, even after
her husband's demise, is financially sound as she runs her own independent
business.
20.
On
the other hand, considering the evidence of the respondent, it seems to us that
since he has borrowed money from several persons and since he has a meager
income he may not be in a position to give comfortable living for the child .
In spite of notices issued to him, he has not appeared before the Court personally
or through his counsel which shows his lack of concern in the matter. It is
also brought to our notice that he has got married for the second time and has
a child too, and the minor child might have to be in the care of step mother,
specially the 10 father being a businessman, he has to be out of the house
frequently on account of his business.
21.
Ordinarily,
under the Guardian and Wards Act, the natural guardians of the child have the
right to the custody of the child, but that right is not absolute and the
Courts are expected to give paramount consideration to the welfare of the minor
child. The child has remained with the appellant/grandmother for a long time
and is growing up well in an atmosphere which is conducive to its growth. It
may not be proper at this stage for diverting the environment to which the
child is used to.
Therefore, it is
desirable to allow the appellant to retain the custody of the child.
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22.
In
view of the above discussion, we allow this appeal and set aside the impugned
order. We permit the appellant to have the custody of the child till she
attains the age of majority. No order as to costs.
.......................................J.
[TARUN CHATTERJEE]
.......................................J.
[ H.L. DATTU ]
New
Delhi,
April
17, 2009.
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