J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed against
the judgment and order passed by the Additional
District & Sessions Judge, Fast Track, 1st
Court, Barasat on July 15, 2006 and confirmed
by the High Court of Calcutta in F.M.A.T. No.
3185 of 2006 on December 7, 2007. By the
impugned orders, both the Courts below directed
handing over custody of minor child Antariksh
Kundu to father-Abhijit Kundu, respondent
herein.
Factual matrix
3. To understand the controversy in the
appeal, it is appropriate if we narrate
relevant facts of the case:
4. The appellants herein, (i) Nil Ratan
Kundu and (ii) Smt. Kabita Kundu are maternal
grand father and grand mother respectively of
minor Antariksh, father and mother of deceased
Mithu Kundu and father-in-law and mother-in-law
of Abhijit Kundu-respondent herein. It is the
case of the appellants that they had a daughter
named Mithu whom they gave in marriage to
Abhijit Kundu on August 8, 1995. The marriage
was performed according to Hindu rites and
ceremonies. Sufficient amount of dowry by way
of money, ornaments and other articles was
given to the respondent. According to the
3
allegation of the appellants, however, the
respondent and his mother were not satisfied
with the dowry and they started torturing Mithu
for bringing more money from the appellants. On
November 18, 1999, a male child-Antariksh was
born from the said wedlock. The appellants
thought that after the birth of son, torture on
Mithu would be stopped. Unfortunately, however,
it did not so happen. Mithu was totally
neglected and the harassment continued. She
became seriously sick. Coming to know about the
ill-health of Mithu, the appellants brought her
to their house and got admitted her in a
nursing home for medical treatment. On being
cured, she returned to her matrimonial home,
but the demand of dowry persisted and physical
and mental cruelty did not stop.
4. In the night of April 9, 2004, as
alleged by the appellants, Mithu was brutally
assaulted by the respondent and his mother and
was brought to a hospital where she was
declared dead. Immediately on the next day
4
i.e. on April 10, 2004, appellant No.1 lodged
First Information Report (FIR) against the
respondent and his mother at Baranagar Police
Station which was registered as Case No. 90 for
offences punishable under Sections 498A and
304, Indian Penal Code (IPC). The respondent
was arrested by the police in that case.
6. On April 18, 2004, custody of
Antariksh was handed over to the appellants.
Antariksh was found in sick condition from the
residence of the respondent. At that time, he
was only of five years. It was his maternal
grand father-appellant No.1, who maintained the
child with utmost love and affection. He was
admitted to St. Xavier's Collegiate School,
Kolkata which is a well-known and well-reputed
school in the State of West Bengal.
7. After due investigation of the case,
on May 31, 2005, police submitted a charge-
sheet against the respondent and his mother and
the criminal case is pending. After the
respondent was enlarged on bail, he filed an
5
application under the Guardians and Wards Act,
1890 (hereinafter referred to as `1890 Act')
praying for custody of Antariksh. A reply was
filed by the appellants to the said application
strongly objecting to the prayer made by the
respondent. It was expressly stated in the
reply that custody of child Antariksh was given
to them when he was found in ailing condition
in the house of the respondent. The respondent
and his mother had killed their daughter and a
criminal case was pending and custody of
Antariksh may not be given to the father-
respondent.
6
Trial Court's order
8. The trial Court, after considering the
evidence on record, allowed the application and
held that respondent was father and natural
guardian of Antariksh and the present and
future of Antariksh would be better secured in
the custody of respondent. Accordingly it
passed an order that custody of Antariksh be
`immediately' given to the father.
High Court's order
9. Being aggrieved by the said order, the
appellants approached the High Court. But the
High Court also, by the order impugned in the
present appeal, dismissed the appeal holding
that the trial Court was right in ordering
custody to be given to the father and the said
order did not suffer from infirmity. The
Division Bench of the High Court, therefore,
directed the appellants to handover child
Antariksh in the custody of his father with
visitation rights to the appellants. The said
7
order is challenged by the appellants-maternal
grand parents of Antariksh in this Court.
Earlier orders
10. On March 7, 2008, when the matter was
placed for admission hearing, notice was issued
by this Court and was made returnable on March
24, 2008. The Court also observed that let the
child (Antariksh) remain present in the Court
on that day at 10.30 a.m. The learned counsel
appearing for the appellants stated that the
appellants would bear expenses of bringing
Antariksh to the Court. Accordingly, a
direction was issued that for that purpose,
custody of Antariksh may be given to the
appellants on March 22, 2008.
11. On the returnable date, i.e. on March
24, 2008, the Court heard learned counsel for
the parties. The Court also ascertained the
wishes of Antariksh. It was, however, observed
in the order that an appropriate order would be
passed on March 31, 2008, the day on which the
8
matter was ordered to be listed for further
hearing. It was stated that till then the
custody of Antariksh would remain with maternal
grand parents. It was also observed that it
would not be necessary to keep Antariksh
present in the Court on the adjourned date. On
March 31, 2008, the matter appeared on the
board and the learned counsel for the parties
were heard. The learned counsel for the
respondent prayed for time to file affidavit in
reply. It was also stated that the matter was
urgent and affidavit should be filed within a
very short period. The Court, therefore,
observed that let such affidavit-in-reply be
filed on or before April 2, 2008 and the
affidavit-in-rejoinder be filed on or before
April 4, 2008. The matter was adjourned to
April 7, 2008. On April 7, 2008, again the
Court heard learned counsel for the parties and
felt that the matter should be heard finally on
a non-miscellaneous day and accordingly the
Registry was directed to place the matter in
9
the last week of April, 2008. The matter was,
therefore, placed on board for final hearing
and it was heard on April 29-30, 2008.
Appellants' submissions
12. The learned counsel for the appellants
strenuously contended that both the Courts were
wholly wrong in granting custody of minor
Antariksh to the respondent. It was stated that
the approach of the Courts below was technical
and legalistic rather than pragmatic and
realistic. It was stated that in such matters,
paramount consideration which is required to be
borne in mind by the Court is welfare of the
child and nothing else. Precisely that has not
been done.
13. It was alleged that the respondent and
his family members were after dowry and they
had tortured Mithu since she could not bring
sufficient amount of dowry. She was physically
and mentally harassed. She became ill and was
admitted to hospital by the appellants. After
1
she was cured, she returned to matrimonial
home, but the harassment and cruelty persisted.
Even after the birth of Antariksh, the
difficulties did not come to an end and as
Mithu was unable to bring more money, as
demanded by the respondent and his family
members, she was killed and criminal
proceedings were initiated against the
respondent and his mother which are pending.
14. It was further stated that the above
incident had given mental shock to minor
Antariksh who was also found sick in the house
of the respondent when he was of five years of
age. The appellants brought Antariksh with them
and got him admitted in a recognized and well
reputed school and he is very well settled. In
the circumstances, the Courts ought not to have
passed an order directing the appellants to
handover custody of Antariksh to the
respondent.
15. It was also contended that the trial
Court which exercised the power under 1890 Act,
1
did not ascertain wishes of Antariksh by
calling him, observing that none of the parties
asked for such examination and considering his
age, such action was not taken. So far as the
High Court is concerned, it observed that the
child had been `tutored' to make him hostile
towards his father. According to the counsel,
there was nothing to show on what basis the
above statement had been made by the High Court
and the custody had been wrongly granted to the
respondent. The said order, therefore, deserves
to be set aside.
16. It was also argued that under 1890
Act, in appointing or declaring a guardian of a
minor, the Court should keep in mind the
welfare of the minor being paramount
consideration having regard to the age, sex and
religion of the minor, the character and
capacity of the proposed guardian and his
nearness of kin to the minor. If the minor is
old enough to form an independent opinion or
preference, the Court may consider that aspect
1
as well. In the instant case, the trial Court
decided the matter on July 15, 2006 when
Antariksh was more than six years of age. But
neither his wishes were ascertained, nor his
preference was even enquired by calling him. It
was also submitted that though `character' of
the proposed guardian has to be taken into
account, the Courts below did not appreciate in
its proper perspective the fact that a criminal
case was pending against the respondent which
related to the death of mother of minor
Antariksh involving the respondent himself and
his mother and by observing that if he would be
convicted, appropriate action could be taken
thereafter. The High Court also committed the
same mistake. Both the orders, therefore, are
liable to be set aside.
Respondent's submissions
17. The learned counsel for the
respondent-father, on the other hand, supported
the order passed by the trial Court and
1
confirmed by the High Court. It was urged that
both the Courts below considered the relevant
provisions of law, the position of the
respondent as natural guardian being father of
Antariksh and the facts in their entirety and
held that there was no earthly reason to
deprive him of custody of minor Antariksh. The
Courts felt that minor Antariksh also should
not be deprived of natural love and affection
of his father in absence of mother.
18. According to the counsel, the Courts
were conscious of the fact that a criminal case
was pending against the respondent and,
therefore, observed that if ultimately the
respondent would be convicted and sentenced to
jail, the appellants herein (grand parents of
the child) could move the Court for change of
custody. Such an order cannot be said to be
illegal or contrary to law and in the exercise
of jurisdiction under Article 136 of the
1
Constitution, this Court may not interfere with
it.
19. Before we address ourselves to the
issue regarding custody of Antariksh, let us
consider the legal position.
1
English Law
20. In Halsbury's Laws of England, Fourth
Edition, Vol. 24, para 511 at page 217 it has
been stated;
"Where in any proceedings before any
court the custody or upbringing of a
minor is in question, then, in
deciding that question, the court must
regard the minor's welfare as the
first and paramount consideration, and
may not take into consideration
whether from any other point of view
the father's claim in respect of that
custody or upbringing is superior to
that of the mother, or the mother's
claim is superior to that of the
father." (emphasis supplied)
21. 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).
22. Sometimes, 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'.
1
23. In Habeas Corpus, Vol. I, page 581,
Bailey states;
"The reputation of the father may be
as stainless as crystal; he may not be
afflicted with the slightest mental,
moral or physical disqualifications
from superintending the general
welfare of the infant; the mother may
have been separated from him without
the shadow of a pretence of
justification; and yet the interests
of the child may imperatively demand
the denial of the father's right and
its continuance with the mother. The
tender age and precarious state of its
health make the vigilance of the
mother indispensable to its proper
care; for, not doubting that paternal
anxiety would seek for and obtain the
best substitute which could be
procured yet every instinct of
humanity unerringly proclaims that no
substitute can supply the place of her
whose watchfulness over the sleeping
cradle, or waking moments of her
offspring, is prompted by deeper and
holier feeling than the most liberal
allowance of nurses' wages could
possibly stimulate."
24. It is further observed that an
incidental aspect, which has a bearing on the
question, may also be adverted to. In
determining whether it will be for the best
interest of a child to grant its custody to the
1
father or mother, the Court may properly
consult the child, if it has sufficient
judgment.
25. In Mc Grath, Re, (1893) 1 Ch 143 : 62
LJ Ch 208, Lindley, L.J. observed;
The dominant matter for the
consideration of the Court is the
welfare of the child. But the
welfare of the child is not to be
measured by money only nor merely
physical comfort. The word
`welfare' must be taken in its
widest sense. The moral or religious
welfare of the child must be
considered as well as its physical
well-being. Nor can the tie of
affection be disregarded. (emphasis
supplied)
American Law
26. Law in the United States is also not
different. In American Jurisprudence, Second
Edition, Vol. 39; para 31; page 34, it is
stated;
1
"As a rule, in the selection of a
guardian of a minor, the best interest
of the child is the paramount
consideration, to which even the
rights of parents must sometimes
yield". (emphasis supplied)
27. In para 148; pp.280-81; it is stated;
"Generally, where the writ of habeas
corpus is prosecuted for the purpose
of determining the right to custody of
a child, the controversy does not
involve the question of personal
freedom, because an infant is presumed
to be in the custody of someone until
it attains its majority. The Court, in
passing on the writ in a child custody
case, deals with a matter of an
equitable nature, it is not bound by
any mere legal right of parent or
guardian, but is to give his or her
claim to the custody of the child due
weight as a claim founded on human
nature and generally equitable and
just. Therefore, these cases are
decided, not on the legal right of the
petitioner to be relieved from
unlawful imprisonment or detention, as
in the case of an adult, but on the
Court's view of the best interests of
those whose welfare requires that they
be in custody of one person or
another; and hence, a court is not
bound to deliver a child into the
custody of any claimant or of any
person, but should, in the exercise of
a sound discretion, after careful
consideration of the facts, leave it
in such custody as its welfare at the
time appears to require. In short, the
1
child's welfare is the supreme
consideration, irrespective of the
rights and wrongs of its contending
parents, although the natural rights
of the parents are entitled to
consideration.
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".
(emphasis supplied)
28. In Howarth v. Northcott, 152 Conn 460 :
208 A 2nd 540 : 17 ALR 3rd 758; it was stated;
"In habeas corpus proceedings to
determine child custody, the
jurisdiction exercised by the Court
rests in such cases on its inherent
equitable powers and exerts the force
of the State, as parens patriae, for
the protection of its infant ward, and
the very nature and scope of the
inquiry and the result sought to be
accomplished call for the exercise of
2
the jurisdiction of a court of
equity".
29. It was further observed;
"The employment of the forms of habeas
corpus in a child custody case is not
for the purpose of testing the
legality of a confinement or restraint
as contemplated by the ancient common
law writ, or by statute, but the
primary purpose is to furnish a means
by which the court, in the exercise of
its judicial discretion, may determine
what is best for the welfare of the
child, and the decision is reached by
a consideration of the equities
involved in the welfare of the child,
against which the legal rights of no
one, including the parents, are
allowed to militate".
(emphasis supplied)
30. It was also indicated that ordinarily,
the basis for issuance of a writ of habeas
corpus is an illegal detention; but in the case
of such a writ sued out for the detention of a
child, the law is concerned not so much with
the illegality of the detention as with the
welfare of the child.
Indian Law
2
31. The legal position in India follows
the above doctrine. There are various statutes
which give legislative recognition to these
well-established principles. It would be
appropriate if we examine some of the statutes
dealing with the situation. Guardians and
Wards Act, 1890 consolidates and amends the law
relating to guardians and wards. Section 4 of
the Act defines "minor" as a person who has not
attained the age of majority. "Guardian" means
a person having the care of the person of a
minor or of his property, or of both his person
and property. "Ward" is defined as a minor for
whose person or property or both, there is a
guardian. Chapter II (Sections 5 to 19) relates
to appointment and declaration of guardians.
Section 7 deals with `power of the Court to
make order as to guardianship' and reads as
under:
7. Power of the Court to make order as
to guardianship.-(1) Where the Court
is satisfied that it is for the
welfare of a minor that an order
should be made--
2
(a) appointing a guardian of his
person or property, or both, or
(b) declaring a person to be such a
guardian,
the Court may make an order
accordingly.
(2) An order under this section shall
imply the removal of any guardian who
has not been appointed by will or
other instrument or appointed or
declared by the Court.
(3) Where a guardian has been
appointed by will or other instrument
or appointed or declared by the Court,
an order under this section appointing
or declaring another person to be
guardian in his stead shall not be
made until the powers of the guardian
appointed or declared as aforesaid
have ceased under the provisions of
this Act.
32. Section 8 of the Act enumerates
persons entitled to apply for an order as to
guardianship. Section 9 empowers the Court
having jurisdiction to entertain an application
for guardianship. Sections 10 to 16 deal with
procedure and powers of Court. Section 17 is
another material provision and may be
reproduced;
2
17. Matters to be considered by the
Court in appointing guardian.-(1) In
appointing or declaring the guardian
of a minor, the Court shall, subject
to the provisions of this section, be
guided by what, consistently with the
law to which the minor is subject,
appears in the circumstances to be for
the welfare of the minor.
(2) In considering what will be for
the welfare of the minor, the Court
shall have regard to the age, sex and
religion of the minor, the character
and capacity of the proposed guardian
and his nearness of kin to the minor,
the wishes, if any, of a deceased
parent, and any existing or previous
relations of the proposed guardian
with the minor or his property.
(3) If the minor is old enough to form
an intelligent preference, the Court
may consider that preference.
* * * * *
(5) The Court shall not appoint or
declare any person to be a guardian
against his will.
(emphasis supplied)
33. Section 19 prohibits the Court from
appointing guardians in certain cases.
34. Chapter III (Sections 20 to 42)
prescribes duties, rights and liabilities of
guardians.
2
35. Hindu Minority and Guardianship Act,
1956 (hereinafter referred to as "1956 Act") is
another equally important statute relating to
minority and guardianship among Hindus.
Section 4 defines "minor" as a person who has
not completed the age of eighteen years.
"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.
36. Section 6 enacts as to who can be said
to be a natural guardian. It reads thus;
6. 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
2
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, the father.
(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).
Explanation.--In this section, the
expressions "father" and "mother"
do not include a step-father and a
step-mother.
37. Section 8 enumerates powers of natural
guardian. Section 13 is extremely important
provision and deals with welfare of a minor.
The same may be quoted in extenso;
13. Welfare of minor to be paramount
consideration.
2
(1)In the appointment or declaration
of any person as guardian of a
Hindu minor by a court, the welfare
of the minor shall be the paramount
consideration.
(2)No, person shall be entitled to the
guardianship by virtue of the
provisions of this Act or of any
law relating to guardianship in
marriage among Hindus, if the court
is of opinion that his or her
guardianship will not be for the
welfare of the minor.
(emphasis
supplied)
38. Section 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.
39. The principles in relation to the
custody of a minor child are well settled. In
determining the question as to who should be
given custody of a minor child, the paramount
2
consideration is the `welfare of the child' and
not rights of the parents under a statute for
the time being in force.
Case law
40. The aforesaid statutory provisions
came up for consideration before Indian Courts
in several cases. Let us deal with few
decisions wherein the courts have applied the
principles relating to grant of custody of
minor children by taking into account their
interest and well-being as paramount
consideration.
41. In 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 paramount consideration."
(emphasis supplied)
2
42. In Rosy Jacob v. Jacob A.
Chakramakkal, (1973) 1 SCC 840, this Court held
that object and purpose of 1890 Act is not
merely physical custody of the minor but due
protection of the rights of ward's health,
maintenance and education. The power and duty
of the Court under the Act is the welfare of
minor. In considering the question of welfare
of minor, due regard has of course to be given
to the right of the father as natural guardian
but if the custody of the father cannot promote
the welfare of the children, he may be refused
such guardianship.
43. The Court further observed that merely
because there is no defect in his personal care
and his attachment for his children--which every
normal parent has, he would not be granted
custody. Simply because the father loves his
children and is not shown to be otherwise
undesirable does not necessarily lead to the
conclusion that the welfare of the children
would be better promoted by granting their
2
custody to him. The Court also observed that
children are not mere chattels nor are they
toys for their parents. Absolute right of
parents over the destinies and the lives of
their children has, in the modern changed
social conditions must yield to the
considerations of their welfare as human beings
so that they may grow up in a normal balanced
manner to be useful members of the society and
the guardian court in case of a dispute between
the mother and the father, is expected to
strike a just and proper balance between the
requirements of welfare of the minor children
and the rights of their respective parents over
them.
44. Again, in Thrity Hoshie Dolikuka v.
Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544,
this Court reiterated that only consideration
of the Court in deciding the question of
custody of minor should be the welfare and
interest of the minor. And it is the special
duty and responsibility of the Court. Mature
3
thinking is indeed necessary in such situation
to decide what will enure to the benefit and
welfare of the child.
45. In Surinder Kaur Sandhu (Smt.) v.
Harbax Singh Sandhu, (1984) 3 SCC 698, this
Court held that Section 6 of the Hindu Minority
and Guardianship Act, 1956 constitutes father
as a natural guardian of a minor son. But that
provision cannot supersede the paramount
consideration as to what is conducive to the
welfare of the minor. [See also Elizabeth
Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1
SCC 42; Chandrakala Menon (Mrs.) v. Vipin
Menon (Capt), (1993) 2 SCC 6].
46. Recently, in Mausami Moitra Ganguli v.
Jayant Ganguli, JT (2008) 6 SC 634, we have
held that the first and the paramount
consideration is the welfare of the child and
not the right of the parent.
47. We observed;
"The principles of law in relation
to the custody of a minor child are
well settled. It is trite that while
3
determining the question as to which
parent the care and control of a child
should be committed, the first and the
paramount consideration is the welfare
and interest of the child and not the
rights of the parents under a statute.
Indubitably the provisions of law
pertaining to the custody of child
contained in either the Guardians and
Wards Act, 1890 (Section 17) or the
Hindu Minority and Guardianship Act,
1956 (Section 13) also hold out the
welfare of the child are predominant
consideration. In fact, no statute on
the subject, can ignore, eschew or
obliterate the vital factor of the
welfare of the minor. The question of
welfare of the minor child has again
to be considered in the background of
the relevant facts and circumstances.
Each case has to be decided on its own
facts and other decided cases can
hardly serve as binding precedents
insofar as the factual aspects of the
case are concerned. It is, no doubt,
true that father is presumed by the
statutes to be better suited to look
after the welfare of the child, being
normally the working member and head
of the family, yet in each case the
Court has to see primarily to the
welfare of the child in determining
the question of his or her custody.
Better financial resources of either
of the parents or their love for the
child may be one of the relevant
considerations but cannot be the sole
determining factor for the custody of
the child. It is here that a heavy
duty is cast on the Court to exercise
its judicial discretion judiciously in
the background of al the relevant
facts and circumstances, bearing in
3
mind the welfare of the child as the
paramount consideration."
48. In Kirtikumar Maheshanker Joshi v.
Pradip Kumar Karunashanker Joshi, (1992) 3 SCC
573, custody of two minor children was sought
by father as also by maternal uncle. Mother
died unnatural death and the father was facing
charge under Section 498-A, Indian Penal Code.
Children were staying with maternal uncle.
Before this Court, both the children expressed
their desire to stay with maternal uncle and
not with the father.
49. Considering the facts and
circumstances and bearing in mind the case
pending against the father and rejecting his
prayer for custody and granting custody to the
maternal uncle, the Court stated;
"After talking to the children, and
assessing their state of mind, we are
of the view that it would not be in
the interest and welfare of the
children to hand over their custody to
their father Pradipkumar. We are
conscious that the father, being a
natural guardian, has a preferential
3
right to the custody of his minor
children but keeping in view the facts
and circumstances of this case and the
wishes of the children, who according
to us are intelligent enough to
understand their well-being, we are
not inclined to hand over the custody
of Vishal and Rikta to their father at
this stage".
50. The counsel also invited our attention
to decisions of various High Courts. In Tarun
Ranjan Majumdar & Anr. v. Siddhartha Datta, AIR
1991 Cal 76, the High Court considered Sections
7, 12 and 25 of 1890 Act. It held that when the
Court is of the opinion that some order is
required to be passed with regard to custody of
a ward, it can be passed considering the
welfare of the ward. It was further observed
that even if a child is in the custody of one
who has no legal right thereto and its welfare
is reasonably looked after in a manner in which
it should, the legal guardian cannot claim an
order of return or recovery of custody merely
on the strength of his legal right or financial
soundness.
3
51. In Bimla Devi v. Subhas Chandra Yadav
`Nirala', AIR 1992 Pat 76, the Court held that
paramount consideration should be welfare of
minor and normal rule (the father is natural
guardian and is, therefore, entitled to the
custody of the child) may not be followed if he
is alleged to have committed murder of his
wife. In such case, appointment of grand-mother
as guardian of minor girl cannot be said to be
contrary to law.
52. Construing the expression `welfare' in
Section 13 of 1956 Act liberally, the Court
observed;
"It is well settled that the word
`welfare' used in this section must be
taken in its widest sense. The moral
and ethical welfare of the child must
also weigh with the Court as well as
its physical well being".
(emphasis supplied)
53. In Goverdhan Lal & Ors. v. Gajendra
Kumar, AIR 2002 Raj 148, the High Court
observed that it is true that father is a
natural guardian of a minor child and therefore
3
has a preferential right to claim custody of
his son, but in the matters concerning the
custody of minor child, the paramount
consideration is the welfare of the minor and
not the legal right of a particular party.
Section 6 of 1956 Act cannot supersede the
dominant consideration as to what is conducive
to the welfare of the minor child. It was also
observed that keeping in mind the welfare of
the child as the sole consideration, it would
be proper to find out wishes of the child as to
with whom he or she wants to live.
54. Again, in M.K. Hari Govindan v. A.R.
Rajaram, AIR 2003 Mad 315, the Court held that
custody cases cannot be decided on documents,
oral evidence or precedents without reference
to `human touch'. The human touch is the
primary one for the welfare of the minor since
the other materials may be created either by
the parties themselves or on the advice of
counsel to suit their convenience.
3
55. In Kamla Devi v. State of Himachal
Pradesh, AIR 1987 HP 34, the Court observed;
"(T)he Court while deciding child
custody cases in its inherent and
general jurisdiction is not bound by
the mere legal right of the parent or
guardian. Though the provisions of the
special statutes which govern the
rights of the parents or guardians may
be taken into consideration, there is
nothing which can stand in the way of
the Court exercising its parens
patriae jurisdiction arising in such
cases giving due weight to the
circumstances such as a child's
ordinary comfort, contentment,
intellectual, moral and physical
development, his health, education and
general maintenance and the favourable
surroundings. These cases have to be
decided ultimately on the Court's view
of the best interests of the child
whose welfare requires that he be in
custody of one parent or the other".
Principles governing custody of minor
children
56. In our judgment, the law relating to
custody of a child is fairly well-settled and
it is this. In deciding a difficult and complex
question as to custody of minor, a Court of law
should keep in mind relevant statutes and the
rights flowing therefrom. But such cases cannot
3
be decided solely by interpreting legal
provisions. It is a humane problem and is
required to be solved with human touch. A Court
while dealing with custody cases, is neither
bound by statutes nor by strict rules of
evidence or procedure nor by precedents. In
selecting proper guardian of a minor, the
paramount consideration should be the welfare
and well-being of the child. In selecting a
guardian, the Court is exercising parens
patriae jurisdiction and is expected, nay
bound, to give due weight to a child's ordinary
comfort, contentment, health, education,
intellectual development and favourable
surroundings. But over and above physical
comforts, moral and ethical values cannot be
ignored. They are equally, or we may say, even
more important, essential and indispensable
considerations. If the minor is old enough to
form an intelligent preference or judgment, the
Court must consider such preference as well,
3
though the final decision should rest with the
Court as to what is conducive to the welfare of
the minor.
Orders of Courts below not in consonance with
law
57. Having given anxious and thoughtful
consideration to the facts of the case and
applying well settled principles referred to
above, we are constrained to observe that the
orders passed by the Courts below are short of
the fundamental principles on more than one
ground.
58. The approach of both the Courts is not
in accordance with law and consistent with the
view taken by this Court in several cases. For
instance, both the Courts noted that the
appellants (maternal grand parents) are giving
`all love and affection' to Antariksh but that
does not mean that Antariksh will not get
similar love and affection from his father. It
was also observed that appellants no doubt got
Antariksh admitted to a well reputed school
3
(St. Xavier's Collegiate School, Kolkata). But
it could not be said that the father will not
take personal care of his son. Both the Courts
also emphasized that the father has right to
get custody of Antariksh and he has not invoked
any disqualification provided by 1956 Act.
59. We are unable to appreciate the
approach of the Courts below. This Court in
catena of decisions has held that the
controlling consideration governing the custody
of children is the welfare of children and not
the right of their parents.
60. In Rosy Jacob, this Court stated;
"The contention that if the husband
(father) is not unfit to be the
guardian of his minor children, then,
the question of their welfare does not
at all arise is to state the
proposition a bit too broadly may at
times be somewhat misleading".
61. It was also observed that the father's
fitness has to be considered, determined and
weighed predominantly in terms of the welfare
of his minor children in the context of all the
4
relevant circumstances. The father's fitness
cannot override considerations of the welfare
of the minor children.
62. In our opinion, in such cases, it is
not the `negative test' that the father is not
`unfit' or disqualified to have custody of his
son/daughter is relevant but the `positive
test' that such custody would be in the welfare
of the minor which is material and it is on
that basis that the Court should exercise the
power to grant or refuse custody of minor in
favour of father, mother or any other guardian.
63. Though this Court in Rosy Jacob held
that children are not mere chattels nor toys,
the trial Court directed handing over custody
of Antariksh `immediately' by removing him from
the custody of his maternal grand-parents.
Similarly, the High Court, which had stayed the
order of the trial Court during the pendency of
appeal ordered handing over Antariksh to his
father within twenty four hours positively. We
4
may only state that a child is not `property'
or `commodity'. To repeat, issues relating to
custody of minors and tender-aged children have
to be handled with love, affection, sentiments
and by applying human touch to the problem.
64. At another place, the trial Court
noted that a criminal case was pending against
the father but the pendency of the case did not
ipso facto disqualify him to act as the
guardian of Antariksh.
65. The Court stated; "If ultimately the
petitioner (father) is convicted and sentenced
in that case, the OPs (maternal grand-parents
of Antariksh) will have the scope to inform the
fact to the Court and to pray for change of the
Court's decision".
66. The Court made a `comparative study'
and observed that it had `no hesitation' in
holding that the present and future of
Antariksh would be better secured in the
custody of his father.
4
67. It then stated;
"Antariksh should be, therefore,
immediately removed from the custody
of OPs (Maternal grand-parents) to the
custody of the petitioner (father)".
(emphasis supplied)
68. The appellants herein challenged the
decision of the trial Court by approaching the
High Court. With respect, the High Court also
committed the same error by not applying
correct principle and proper test of welfare of
minor (Antariksh) as the paramount
consideration. It, no doubt, referred to the
principle, but held that the trial Court was
right in handing over custody of Antariksh to
the father.
69. The High Court then proceeded to
state;
"We have gone through the evidence
adduced by both sides and also heard
the child in order to decide the
question of the welfare of the said
child. During our conversation with
the child we have observed with great
anxiety that the child has been
tutored to make him hostile towards
his father. In this connection it is
4
worth mentioning here that the learned
Court below also held that the O.P's
wanted to wipe out the existence and
identity of father from the mind of
the petitioner's son and if it so,
then it may be disastrous for the
future of the petitioner's son".
(emphasis supplied)
70. We are sorry to say that there is no
material on record as to on what basis the
above inference was drawn or opinion was formed
by the High Court.
71. Now, it has come in evidence that
after death of Mithu (mother of Antariksh) and
lodging of First Information Report by her
father against Abhijit (father of Antariksh)
and his mother (paternal grand mother of
Antariksh), Abhijit was arrested by police. It
was also stated by Nil Ratan Kundu (father of
Mithu) that mother of accused Abhijit (paternal
grand mother of Antariksh) absconded and
Antariksh was found sick from the house of
Abhijit.
4
72. In our considered opinion, on the
facts and in the circumstances of the case,
both the Courts were duty bound to consider the
allegations against the respondent herein and
pendency of criminal case for an offence
punishable under Section 498A, IPC. One of the
matters which is required to be considered by a
Court of law is the `character' of the proposed
guardian. In Kirit Kumar, this Court, almost in
similar circumstances where the father was
facing the charge under Section 498-A, IPC, did
not grant custody of two minor children to the
father and allowed them to remain with maternal
uncle. Thus, a complaint against father
alleging and attributing death of mother and a
case under Section 498-A, IPC is indeed a
relevant factor and a Court of law must address
to the said circumstance while deciding the
custody of the minor in favour of such person.
To us, it is no answer to state that in case
the father is convicted, it is open to maternal
4
grand parents to make an appropriate
application for change of custody. Even at this
stage, the said fact ought to have been
considered and appropriate order ought to have
been passed.
73. As already noted, Antariksh was aged
six years when the trial Court decided the
matter. He was, however, not called by the
Court with a view to ascertain his wishes as to
with whom he wanted to stay. The reason given
by the trial Court was that none of the parties
asked for such examination by the Court.
74. In our considered opinion, the Court
was not right. Apart from statutory provision
in the form of sub-section (3) of Section 17 of
1890 Act, such examination also helps the Court
in performing onerous duty, in exercising
discretionary jurisdiction and in deciding
delicate issue of custody of a tender-aged
child. Moreover, the final decision rests with
the Court which is bound to consider all
questions and to make an appropriate order
4
keeping in view the welfare of the child.
Normally, therefore, in custody cases, wishes
of the minor should be ascertained by the Court
before deciding as to whom custody should be
given.
75. Before about a century, in Anni Besant
(Mrs.) v. G. Narayaniah & Anr., 41 IA 314 : AIR
1914 PC 41, under an agreement, custody of two
minor sons was with the mother who was staying
in England. The father who was residing in
Madras, instituted a suit for custody of his
sons asserting that he was the natural guardian
of the minors and was entitled to have custody
of both his sons. The trial Court decreed the
suit which was confirmed by the High Court.
76. The Judicial Committee of the Privy
Council held that under the Hindu Law, the
father was the natural guardian of his children
during their minority. But it was stated that
the infants did not desire to return to India
and no order directing the defendant mother to
4
send minors to India could have been lawfully
made by an Indian Court.
77. Upholding the contention, allowing the
appeal and dismissing the suit, their Lordships
observed that it was open to the plaintiff-
father to apply to His Majesty's High Court of
Justice in England for getting custody of his
sons. "If he does so the interests of the
infants will be considered, and care will be
taken to ascertain their own wishes on all
material prints." (emphasis supplied) Since
it was not done, the decree passed by both the
Courts was liable to be set aside.
78. We may, however, refer at this stage
to a submission of the learned counsel for the
respondent-father. Referring to Thrity, the
counsel contended that this Court held that the
Court is not bound to interview the child. In
that case, this Court did not interview the
minors and did not ascertain their wishes. It
was, therefore, submitted that it cannot be
4
said that non-examination of Antariksh or
failure to ascertain his wishes by the trial
Court was illegal or unlawful and vitiated the
order.
79. We are unable to agree with the
learned counsel. We have closely gone through
Thrity. Reading the decision as a whole makes
it amply clear that on the facts of the case,
this Court felt that calling minor children
frequently in a Chamber by Judges was not
proper and such interviews really disturbed
them rather than giving them a respite and
relief.
80. This Court reproduced some of the
observations of learned Judges of the High
Court who had interviewed the minors. The Court
also considered sub-section (3) of Section 17
of 1890 Act and the power of the Court to
interview a minor child with a view to consider
his/her preferences and observed;
"We may, however, point out that there
cannot be any manner of doubt as to
4
the Court's power of interviewing any
minor for ascertaining the wishes of
the minor, if the Court considers it
so necessary for its own satisfaction
in dealing with the question relating
to the custody of the minor".
81. Considering the facts of the case,
however, the Court refused to undertake that
exercise and stated;
"In the facts and circumstances of
this case we are however, not inclined
to interview the minor daughter, as we
are satisfied in the present case that
the minor is not fit to form an
intelligent preference which may be
taken into consideration in deciding
her welfare. We have earlier set out
in extenso the various orders passed
by the various learned Judges of the
Bombay High Court after interviewing
the minor and the learned Judges have
recorded their impressions in their
judgments and orders. The impressions
as recorded by the learned Judges of
the Bombay High Court, go to indicate
that the minor has expressed different
kinds of wishes at different times
under different conditions. It also
appears from the report of the Social
Welfare Expert that these interviews
cast a gloom on the sensitive mind of
the tender girl and caused a lot of
strain and depression on her. Torn
between her love for both her parents
5
and the acrimonious dispute between
them resulting in the minor being
dragged from court to court, we can
well appreciate that the sensitive
mind of the minor girl is bound to be
sadly affected. Though the girl is
quite bright and intelligent as
recorded by the learned Judges of the
Bombay High Court in their orders
after their interviews with the girl
who is of a tender age and is placed
in a very delicate and embarrassing
situation because of the unfortunate
relationship and litigation between
her parents for both of whom she has
great deal of affection, she is not in
a position to express any intelligent
preference which will be conducive to
her interest and welfare. Mature
thinking is indeed necessary in such a
situation to decide as to what will
enure to her benefit and welfare. Any
child who is placed in such an
unfortunate position, can hardly have
the capacity to express an intelligent
preference which may require the
Court's consideration to decide what
should be the course to be adopted for
the child's welfare. The letters
addressed by the daughter to her
mother from Panchgani and also a
letter addressed by her to her aunt
(father's sister) also go to show that
the minor cannot understand her own
mind properly and cannot form any firm
desire. We feel that sending for the
minor and interviewing her in the
present case will not only not serve
any useful purpose but will have the
effect of creating further depression
5
and demoralisation in her mind".
(emphasis supplied)
82. From the above observations and
particularly the italicized portion, it is
abundantly clear that in peculiar facts and
circumstances of the case, this Court was
satisfied that calling a minor girl and
interviewing her several times had not only not
served any useful purpose but had the effect of
creating further depression and demoralization
in her mind.
83. In the instant case, on overall
considerations we are convinced that the Courts
below were not right or justified in granting
custody of minor Antariksh to Abhijit-
respondent herein without applying relevant and
well-settled principle of welfare of the child
as paramount consideration. The trial Court
ought to have ascertained the wishes of
Antariksh as to with whom he wanted to stay.
84. We have called Antariksh in our
chamber. To us, he appeared to be quite
5
intelligent. When we asked him whether he
wanted to go to his father and to stay with
him, he unequivocally refused to go with him or
to stay with him. He also stated that he was
very happy with his maternal grand-parents and
would like to continue to stay with them. We
are, therefore, of the considered view that it
would not be proper on the facts and in the
circumstances to give custody of Antariksh to
his father-respondent herein.
85. For the foregoing reasons, the appeal
deserves to be allowed and is accordingly
allowed. The application filed by the
respondent Abhijit for custody of his son
Antariksh is ordered to be dismissed. In view
of the facts and circumstances of the case,
however, there shall be no order as to costs.
