Smt Pushpa And Another vs Smt. Anshu Chaudhary
2013 Latest Caselaw 644 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 9
 

 
Case :- FIRST APPEAL No. - 212 of 2013
 

 
Petitioner :- Smt Pushpa And Another
 
Respondent :- Smt. Anshu Chaudhary
 
Petitioner Counsel :- Sumit Daga
 
Respondent Counsel :- S.K. Tripathi,Shailendra Singh
 

 
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Hon'ble Ashok Bhushan,J.

Hon'ble Manoj Mishra,J.

(Per Hon'ble Ashok Bhushan, J.)

This first appeal has been filed by the appellants, who are grandmother and grandfather of a minor girl Km. Resha aged about 6 years, against the judgment and order dated 27th February, 2013 passed by the Additional Principal Judge, Family Court, Meerut by which the Court has allowed the application filed by the respondent, the mother of child, for custody of the child.

We have heard Sri Sumit Daga and Sri Alok Kumar Singh learned counsel for the appellants and Sri M.A. Qadeer, Senior Advocate, assisted by Sri S.K. Tripathi for the respondent.

Brief facts giving rise to this first appeal are necessary to be noted. The respondent Smt. Anshu Chaudhary was married on 6th December, 2005 with Amit Chaudhary, the son of the appellants. Km. Resha, a girl child, was born from the wedlock on 28th January, 2007. The husband of the respondent died on 8th December, 2010 in a car accident. The respondent along with her daughter continued to live with appellants till 28th February, 2011 after which it is alleged that respondent along with her child were turned out from the house. The respondent started living with her parents at T.P. Nagar, Meerut. The respondent's further case is that on 18th March, 2011 the appellants with their daughter and son-in-law came to T.P. Nagar, residence of the respondent's father, and snatched Km. Resha with regard to which a complaint was also submitted. Smt. Pushpa, appellant No.1, filed an application being Application No.18 of 2011 under Section 7 of the Guardians and Wards Act, 1890 (hereinafter referred to as the 1890 Act) praying that she be appointed as guardian of the minor Km. Resha. Smt. Anshu Chaudhary also filed an application being Application No.19 of 2011 praying that Km. Resha be given in her custody. In both the cases a joint application for compromise was submitted by appellant Smt. Pushpa and respondent Smt. Anshu Chaudhary that Smt. Pushpa shall be guardian of Km. Resha with whom the minor shall live and the minor in vacation shall live with her mother. The Court on the basis of the compromise passed an order on 29th October, 2011. In the end of the year 2011, the respondent was appointed as Lecturer in Government Girls Inter College, Bareilly where she joined and started working. The respondent filed an application under Section 10/12 of the 1890 Act being Application No.19 of 2012 in the Court of Principal Judge, Family Court, Meerut praying that custody of minor child be given to her who is her natural mother. In the application it was pleaded that minor is not getting good education and she is not being looked after well. It was pleaded that respondent is earning and shall well look after the child. Affidavits were filed by the respondent in support of her case. The statement of respondent was also recorded by the Principal Judge, Family Court and she was cross examined by the appellants. Affidavits were also filed by the appellants and the statements of the appellants were also recorded. The Additional Principal Judge, Family Court by judgment and order dated 27th February, 2013 allowed the application of the respondent and directed the appellants to handover the custody of child within 30 days. This first appeal under Section 19 of the Family Court Act has been filed by the appellants against the judgment and order of the trial Court.

Learned counsel for the appellants, challenging the order of the Additional Principal Judge, Family Court, submitted that the application filed by respondent being Application No.19 of 2012 was barred by principles of res-judicata in view of the fact that earlier the custody was given to appellant No.1 on the basis of a compromise dated 29th October, 2011 between the parties. It is submitted that the respondent, if aggrieved by the earlier order of the Court dated 29th October, 2011 appointing appellant No.1 as guardian, should challenge the earlier order dated 29th October, 2011 instead of filing another application. It is submitted that earlier decision dated 29th October, 2011 operated as res-judicata and the Application No.19 of 2012 was liable to be dismissed on this ground alone. It is further submitted that appellants, who are grandmother and grandfather of the child, are financially well off to take care of all the needs of the child. It is submitted that child is studying in an institution and all expenses of the child are being borne by the appellants. It is submitted that appellant No.2, who was working as Electrician in Daurala Sugar Mill, is also running a medical store from where sufficient income is received. The appellants have also taken life insurance policy in favour of the child. It is further stated that appellants have also engaged a home tutor to teach the child at home. The appellants are fully competent to take care of the child and there was no occasion to change the guardianship or to give custody of the child to the respondent.

Learned counsel for the appellant has placed reliance on judgment of the Apex Court in the case of M. Nagabhushana vs. State of Karnataka and others reported in 2011 All. C.J. 700=(2011) 3 SCC 408 and judgment of a learned Single Judge of this Court in the case of Durga Prasad Tandon and others vs. Gaur Bramhan Sabha, Nainital and others reported in 2000(2) Allahabad Rent Cases 379.

Sri M.A. Qadeer, Senior Advocate, appearing for the respondent, refuting the submissions of learned counsel for the appellants, submitted that the Additional Principal Judge, Family Court has rightly allowed the application filed by the respondent, mother of the child. It is submitted that earlier decision dated 29th October, 2011 was only a compromise decision and was not a decision on merits, hence principles of res-judicata are not attracted. It is submitted that respondent, the mother, is working as teacher in Government Girls Inter College and receiving a salary of about 32,000/- per month and is fully competent to take care of all the needs of the child. It is stated that mother being natural guardian is entitled to have custody of the child. It is further submitted that circumstances have changed after 29th October, 2011 and application filed by the respondent for custody of the child was fully maintainable.

Sri Qadeer, Senior Advocate, appearing for the respondent has placed reliance on a judgment of the Apex Court in the case of Rosy Jacob vs. Jacob a Chakramakkal reported in 1973(1) SCC 840.

We have considered the submissions of learned counsel for the parties and have perused the record.

From the pleadings on the record and submissions made by learned counsel for the parties, following issues emerge for consideration in the present appeal:-

(i)Whether earlier order of the Principal Judge, Family Court dated 29th October, 2011 giving custody of child to appellant No.1 on the basis of compromise submitted by both the parties, shall operate as res-judicata in subsequent application No.19 of 2012 filed by the respondent praying for custody of the child?

(ii)Whether Application No.19 of 2012 filed by the respondent was barred by the provisions of Order XXIII, Rule 3A of C.P.C.?

(iii)Who among, mother on one hand and grand parents on other hand, is best entitled to have custody of the child taking into consideration relevant facts and circumstances specially the welfare of the child?

Before we proceed to consider the issues, as noted above, it is necessary to have a look over the relevant statutory provisions governing the field. The 1890 Act was enacted to consolidate and amend the law relating to guardian and wards. Section 7 of the 1890 Act provides for power of the Court to make order as to the guardianship. Section 8 provides for persons entitled to apply for orders. Section 9 provides that application in respect of guardianship of a person shall be made to the District Court having jurisdiction to the place. Section 10 provides for form of the application and the facts which are required to be stated in the application. Section 12 empowers the Court to make interlocutory order for production of minor and interim protection of person and property. Section 13 provides for hearing of evidence before making the order. Section 17 enumerates the matters to be considered by the Court in appointing guardian. Section 17 of the 1890 Act, which is relevant for the purpose, is quoted below:-

"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."

The Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the 1956 Act) was enacted to amend and codify certain parts of the law relating to minority and guardianship among Hindus. Section 5 of the 1956 Act gives overriding effect to the Act. Section 6 deals with natural guardian of a Hindu minor. Section 6(a) which is relevant, is quoted below:-

"6. Natural guardians of a Hindu minor - The natural guardian 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 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;
 
	........"
 
	Section 13 of the 1956 Act enumerates welfare of minor to be paramount consideration, which is quoted below:-
 

 
"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."
 

 

Now we come to the first issue as to whether application filed by the respondent being Application No.19 of 2012 was barred by principles of res-judicata. Section 11 of the Code of Civil Procedure provides for res-judicata. For applicability of Section 11 of C.P.C. Certain ingredients have to be fulfilled which have been enumerated in Section 11 itself. Section 11 of the C.P.C. is quoted below:-

"11. res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI- Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

*[Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."

To constitute a matter res-judicata, the following conditions must exist:-

(i)The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (explanation III) or constructively (explanation IV) in the former suit.

(ii)The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Explanation VI is to be read with this condition.

(iii)The parties as aforesaid must have litigated under the same title in the former suit.

(iv)The court which decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue has been subsequently raised. Explanation II is to be read with this condition.

(v)The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. Explanation V is to be read with this condition.

The Apex Court in the case of Pandurang Ramchandra Mandlik and another vs. Shantibai Ramchandra Ghatge and others reported in 1989 Supp (2) SCC 627, had occasion to consider the expression "heard and finally decided". It was held by the Apex Court that expression "heard and finally decided" means a matter on which the court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter. Following was observed by the Apex Court in paragraph 20 of the said judgment:-

"20. The expression 'heard and finally decided' in Section 11 means a matter on which the court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter. It is essential that it should have been heard and finally decided...."

Present is a case where in earlier applications filed for custody and guardianship, a compromise application was submitted by appellant No.1 and respondent on 29th October, 2011 on the basis of which appellant No.1 was appointed as guardian. Whether on the basis of an order passed on compromise, the plea of res-judicata can be sustained is the issue which had come for consideration in several cases before the Apex Court. In the case of Sunderbai and another vs. Devaji Shankar Deshpande reported in AIR 1964 SC 82, the Apex Court had occasion to consider the issue "whether the suit was barred by res-judicata by reason of consent decree passed in Suit No.291 of 1937". The Apex Court laid down following in paragraph 12 of the said judgment:-

"12. The bar of 'res judicata' however, may not in terms be applicable in the present case, as the decree passed in Suit No. 291 of 1937 was a decree in terms of the compromise. The terms of section 11 of the Civil Procedure Code would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide: the commentary of Sir Dinshaw Mulla on section 11 of the Civil Procedure Code at page 84 of the 11th Edition under the caption 'Consent decree and estoppel':

"The present section does not apply in terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties 'have been heard & finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as 'res judicata' as a decree passed 'in invitum'. It raises an estoppel as much as a decree passed 'in invitum."

The Apex Court in the above judgment said that the terms of Section 11 of C.P.C. would not be strictly applicable in a case where decree was passed in terms of compromise, however, principle of estoppel would still apply.

Before we proceed further, it is useful to recall a judgment of Justice Mahmud in the case of Sita Ram vs. Amir Begam reported in (1886) ILR 8 All 324, p. 332 in which learned Judge has explained the differences between the plea of res-judicata and an estoppel. Following was laid down by Justice Mahmud:-

"Perhaps the shortest way to describe the difference between the plea of res judicata and an estoppel, is to say that while the former prohibits the court from entering into an inquiry at all as to a matter already adjudicated upon, the latter prohibits a party after the inquiry has already been entered upon, from proving anything which would contradict his own previous declaration or acts to the prejudice of another party who relying upon those declaration or acts to the prejudice of another party has altered his position. In other words, res judicata prohibits an inquiry in limine, whilst an estoppel is only a piece of evidence."

The Apex Court had occasion to consider plea of res-judicata in context of compromise decree in the case of Pulavarthi Venkata Subba Rao and others vs. Valluri Jagannadha Rai reported in AIR 1967 SC 591. In the said case it was contended before the Apex Court that compromise decree is a decree which finally determine the right of the parties, hence principles of res-judicata can be applicable when a subsequent suit is filed between the parties raising same issue. Repelling the contention, following was laid down in paragraph 10:-

"10. The appellants then seek to reach the same result by invoking the principle of res judicata. It is contended that the earlier decision amounts to res judicata and the respondents- were not entitled to raise the same issue which by implication must be held to be decided against them by the compromise judgment and decree. In the alternative, it is contended that the earlier compromise decree creates an estoppel against the respondents because the appellants at that time had shown some concession in the amount which they were claiming and a decree for a lessor amount was passed. This estoppel was said to be an estoppel by judgment. In our opinion, these contentions cannot be accepted. The Act as amended confers this right upon petty agriculturists to save them from the operation of loans taken at usurious rates of interest. No doubt the conduct of respondents in omitting to press the claim for reduction of the amount of the claim on the first occasion is significant, but this did not Constitute res judicata, either statutory or constructive. The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the court on the agreement of the parties. The court did not decide anything. Nor can it be said that a decision of the court was implicit in it. Only a decision by the court could be res judicata, whether statutory under s.11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests. The respondents claim to raise the issue over again because of the new rights conferred by the Amending Act, which rights include, according to them, the re-opening of all decrees which had not become final or which had not been fully executed. The respondents are entitled to take advantage of the amendment of the law unless the law itself barred them, or the earlier decision stood in their way. The earlier decision cannot strictly be regarded as a matter which was "heard and finally decided". The decree might have created an estoppel by conduct between the parties; but here the appellants are in an unfortunate position, because they did not plead this estoppel at any time. They only claimed that the principle of res judicata governed the case or that there was an estoppel by judgment. By that expression, the principle- of res judicata is described 'in English law. There is some evidence to show that the respondents had paid two sums under the consent decree, but that evidence cannot be looked into in the absence of a plea of estoppel by conduct which needed to be raised and tried. The appellants are, however, protected in respect of these payments by the proviso to cl. (iii) of s. 16 of the Amending Act."

Again in the case of Baldevdas Shivlal and another vs. Filmsitan Distributors (India) Pvt. Ltd. And others reported in AIR 1970 SC 406, same issue came before the Apex Court. In the said case submission was considered that previous judgment being a judgment of consent, the same shall operate as res-judicata. Repelling the submission, following was laid down in paragraph 8 of the said judgment:-

"8. The Trial Judge in overruling the objection did not decide any issues at the stage of recording evidence : he was not called upon to decide any issues at that stage. The observations made by him obviously relate to the arguments advanced at the Bar and can in no sense be regarded even indirectly as a decision on any of the issues. But the High Court has recorded a finding that the agreement dated November 27, 1954, created a lease and that the consent decree operated as res judicata. A consent decree, accord- ing to the decisions of this Court, does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to a suit, to which is superadded the seal of the Court. A matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court : the terms of s. II of the Code leave no scope for a contrary view. Again it was for the Trial Court in the first instance to decide that question and there-after the High Court could, if the matter were brought before it by way of appeal or in exercise of its revisional jurisdiction, have decided that question. In our judgment, the High Court had no jurisdiction to record any finding on the issue of res judicata in a revision application filed against an order refusing to uphold an objection to certain question asked to a witness under examination."

The Madhya Pradesh High Court in the case of Smt. Rehana Parveen vs. Naimuddin reported in AIR 2000 Madhya Pradesh 1, had occasion to consider the similar issue raised on an application filed under the provisions of the Guardian and Wards Act, 1890 where an earlier order was passed on the basis of compromise. In the said case the issue was custody of the minor daughter. The application was filed by mother for custody of minor daughter which application was opposed on the ground that by another order in Case No.36 of 96, the matter of custody of minor daughter was already decided, hence the said order shall operate as res-judicata and the matter cannot be agitated. The trial Court rejected the application of mother against which matter was taken in revision in the High Court. It was contended that there was substantial change of circumstances, hence the application filed by mother could not have been rejected on the ground of res-judicata. The High Court accepted the plea of mother that earlier order shall not operate as res-judicata. Following was laid down in paragraphs 3, 4, 5 and 6 of the said judgment by the Madhya Pradesh High Court:-

3. The learned counsel for the petitioner has urged firstly that the earlier order dated 31-3-97 in Guardian and Wards Case No. 36/96 was passed on the basis of compromise arid was not on merits, and would not therefore constitute res-judicata, as has been laid down in Pulavarthi Venkata Subba Rao v. Valluri Jagannadha too, AIR 1967 SC 591. It is pointed out that the petitioner is the second wife of the respondent. It has been submitted in the above context that the respondent-husband after the above order passed as a result of consent and compromise between the parties, married a third, wife who died an unnatural death. A child was also born from the third marriage. Therefore, the respondent has married for the fourth time. It has therefore been urged that there is considerable change in the circumstances since the order granting custody of minor was passed. It was further submitted that the view of changed circumstances, as above, it would not be in the interest and welfare of minor that she should remain in the custody of the respondent-husband. It has therefore been urged that the matter deserves reconsideration. Reliance has been placed on Surajmal v. Radheshyam, AIR 1988 SC 1345.

4. As against this, the learned counsel for the respondent has submitted that the parties had with full knowledge of the implications thereof in the previous case No. 36/96, voluntarily entered into an agreement which was duly considered by the trial Court, where after the order dt/- 31-3-97 was passed, keeping the ultimate welfare of the child in mind. It has therefore, been urged that the order passed as above, does not call for interference at the instance of petitioner-wife.

5. It is noticed that the order of the previous case No. 36/96 between the parties was passed on the basis of agreement between the parties. Hence, as laid down in Pulavarthi Venkata Subba Rao (supra) the same was not a decision on merits by the Court; hence would not operate as res-judicata and thus would not operate as bar to the consideration of this application for custody of the child, under Guardian and Wards Act. Reference in the above connection may also be made to Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406. Moreover, there is substantial change in the circumstances of the parties as has been averred in the application, which requires the same to be considered on merits.

6. It may further be pointed out that while hearing and deciding the matter of custody of child paramount consideration before the Court always is the ultimate welfare of the minor. No other consideration possibly could prevail with the Court, and nothing could prohibit a Court from consideration of the matter if need be, even if it is for the second or third time. The technical principle of res-judicata would not be operative more so, if substantial change in circumstances is averred and found prima facie justified. If such is the case, the subsequent application for custody of the minor cannot be thrown out at the threshold holding it to be not maintainable. The circumstances in the instant case as averred by the petitioner in her petition and as contended by her learned counsel prima-facie justify reconsideration of her petition on merits."

There is one more reason on account of which we are of the view that Application No.19 of 2012 filed by the respondent cannot be held to be barred by Section 11 of C.P.C. or principle of estoppel. There are series of judgments taking the view that the order of custody of a child under the provisions of the 1890 Act are temporary in nature and are in the nature of interlocutory order which cannot be held to be final adjudication. The appointment of guardian to one person and custody of child given at one set of circumstances may no longer be beneficial to the welfare of the child and the custody and guardianship can be changed from time to time looking to the relevant facts and circumstances. The Apex Court in Rosy Jacob's case (supra) held that all orders relating to the custody are temporary in nature. Following was laid down in paragraph 18 of the judgment:-

"18. The appellant's argument based on estoppel and on the orders made by the court under the Indian Divorce Act with respect to the custody of the children did not appeal to us. All orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and Circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based, on consent decrees. cited at the bar. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation."

In the case of Dhanwanti Joshi vs. Madhav Unde reported in (1998)1 SCC 112, again same proposition was laid down. In the said case the Apex Court held that there must be proof of substantial change in the circumstances presenting a new case. Following was laid down in paragraph 21:-

"21. It is no doubt true that orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at an future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interests of the child [Rosy Jacob vs. Jacob a. Chakramakkal (1973 (1) SCC 840)]. However, we may state that in respect of orders as to custody already passed in favour of the appellant the doctrine of res judicata applies and the family Court in the present proceedings cannot re-examine the facts which were formerly adjudicated between the parties on the issue of custody or are deemed to have been adjudicated. There must be proof of substantial change in the circumstances presenting anew case before the court. It must be established that the previous arrangement was not conductive to the child's welfare or that it has produced unsatisfactory results. Ormerod L.J. pointed out in S vs. W [(1981) 11 Fam.Law 21 (82) {CA)] that

"the status quo argument depends for its strength wholly and entirely on whether the status quo is satisfactory or not, the more satisfactory the status quo, the stronger the argument for not interfering. The less satisfactory the status quo, the less one requires before deciding to change".

In the case of R.V. Srinath Prasad vs. Nandamuri Jayakrishna and others reported in (2001)4 SCC 71, it was again held by the Apex Court that custody orders by their nature can never be final, however, before a change is made it must be proved to be in the paramount interest of the children. Following was observed in paragraph 11 of the judgment:-

"11. The High Court appears to have overlooked the settled principle that custody orders by their nature can never be final; however , before a change is made it must be proved to be in the paramount interest of the children. In a sensitive matter like this no single factor can be taken to be decisive. Neither affluence nor capacity to provide confortable living should cloud the consideration by the Court. Here we may refer to the decision of this Court in Jai Prakash Khadria vs. Shyam Sunder Agarwalla and another 2000(6) SCC 598. In such matters usually, Courts while granting the custody of minor children to one party extend the facility of visiting them to the other. At the cost of repetition we may state that we are not discussing the merits of the case pleaded by the parties in detail since the application for the custody is pending for adjudication before the Family Court at Hyderabad."

In the present case the respondent's case before the Additional Principal Judge, Family Court was that circumstances have substantially changed under which the respondent is claiming custody of the children. There is material on the record which indicate that respondent got a job of lecturer in Government Girls Inter College, Bareilly in the end of the year 2011 which was a changed circumstance on the basis of which respondent has claimed for custody. It is on the record that at the time when compromise order was passed for custody on 29th October, 2011, the respondent was not receiving any earning and after she being appointed as Lecturer, she was getting salary of Rs.32,000/- per month. We are of the view that getting a job of lecturer in girls' institution by the respondent and earning of about Rs.32,000/- per month was relevant change in the circumstances on the basis of which respondent could have very well filed the application for custody. In the Application No.19 of 2012, the respondent has also come with the case that minor is not getting good education and she is not being well looked after. It was further stated by the respondent that at the time when compromise was entered, she was not in a fit state of mind, her husband having died less than a year from the aforesaid date.

The learned counsel for the appellants has placed reliance on two judgments, one of the Apex Court and another of a learned Single Judge of this Court. In M. Nagabhushana vs. State of Karnataka and others case (supra) the Apex Court had occasion to consider the principles of res-judicata. The Apex Court laid down that principles of res-judicata seek to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties. Elaborating the principles of res-judicata, following was laid down by the Apex Court in paragraphs 14 and 15 of the said judgment:-

"14. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.

15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties."

There cannot be any dispute to the proposition as laid down by the Apex Court in the said case. In the aforesaid case the land acquisition proceedings were challenged before the High Court by means of the writ petition. The land acquisition proceedings were challenged in a previous writ petition in the year 2003 in which land acquisition proceedings were quashed but in appeal the judgment was reversed. The Division Bench order was also upheld. Subsequently another writ petition was filed in the year 2007 challenging the acquisition proceeding. In above context, the Apex Court held that principles of res-judicata are fully applicable. The said case does not help the appellants in the present case.

In view of the foregoing discussions, we are of the view that application filed by the respondent could not have been barred by res-judicata or estoppel and the respondent had every right to maintain the application and pray for custody.

The issue, which is to be considered next, is as to whether the application filed by the respondent was barred by Order XXIII, Rule 3-A of C.P.C. Order XXIII, Rule 3-A of C.P.C. is as under:-

"3-A. Bar to suit - No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."

The judgment of learned Single Judge in Durga Prasad Tandon's case (supra) was a case where the compromise decree was challenged on the ground that it was obtained by playing fraud and exercising coercion in a suit. The Suit No.155 of 1989 was filed praying for cancellation of decree dated 24th July, 1987 on the ground that compromise was obtained by coercion, fraud etc. The trial Court dismissed the suit as not maintainable. The lower appellate Court recorded a finding that compromise decree was not obtained by fraud or exercise of undue coercion. The trial Court had dismissed the suit as not maintainable in view of Order XXIII, Rule 3-A of C.P.C. Although the trial Court dismissed the suit only on the ground that suit was barred under Order XXIII, Rule 3-A of C.P.C. but the the lower appellate Court scrutinise the evidence and on appraisal of evidence recorded a finding that there was no fraud in earlier decree. The High Court held that suit was barred under Order XXIII, Rule 3-A of C.P.C. The High Court dismissed the second appeal taking the view that the suit was barred under Order XXIII, Rule 3-A of C.P.C.

The Durga Prasad Tandon's case (supra) was a case where suit was filed for setting aside the decree which was obtained by compromise. In above circumstances the Court held that bar of Order XXIII, Rule 3-A of C.P.C. shall apply. The said case has no application in the present case since firstly the subsequent application was not for setting aside the earlier order passed on compromise and secondly the application was filed on the basis of changed circumstances. In view of the aforesaid, we are of the view that Application No.19 of 2012 was not barred by Order XXIII, Rule 3-A of C.P.C.

Now comes the last issue i.e. welfare of the child. As noted above, the provisions of Section 17 of the 1890 Act and Section 13 of the 1956 Act provides that the welfare of the minor is of paramount consideration for taking a decision regarding guardianship and custody. The welfare of a child is neither determined by economic affluence nor a deep mental or emotional concern. The welfare of the child is all round welfare which is to be considered taking into consideration entire facts and circumstances. The physical well being, education, supplying the daily necessities such as food, clothing and shelter is the primary consideration. Welfare of child lies in providing good education to the child to create surroundings which may give an atmosphere to overall development of personality. A Division Bench of Kerala High Court in the case of Munnodiyil Peravakutty vs. Kuniyedath Chalil Velayudhan reported in AIR 1992 Kerala 290, while considering the relevant factors to determine the welfare of the child, laid down following in paragraph 6:-

"6. Capacity of the custodian to supply the daily necessities such as food, clothing and shelter is the primary consideration. Secondly the education of the child. The custodian must possess the capacity to create surroundings in which the child will be in touch with education. In the case of a custodian who is himself educated and given to reading and writing it is easier for the child to keep itself abreast of letters. If the custodian is not educated, he cannot create the requisite background in the home. Thirdly awareness of the need, to keep good health and the capacity to provide the means of keeping good health is another important factor. Fourthly a knowledgeable parent would greatly contribute to the child's welfare by taking steps like emphasising healthy eating habits, providing for vaccination, other measures of health-care, timely treatment and the company of books. Less educated or ignorant parents may not be able to create these conditions. Fifthly, the economic capacity to educate in a good school, with private coaching, where necessary, meeting expenses of transport, children's excursions and so on is no less an important factor."

The Apex Court in Rosy Jacob's case (supra) had occasion to consider the issue of custody between mother and father. Following observations were made by the Apex Court:-

"... There is a presumption that a minor's parents would do their very best to promote their children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children...."

In an earlier judgment a Division Bench of this Court in the case of Mt. Haliman Khatoon vs. Mt. Ahmadi Begum and others reported AIR (36) 1949 Allahabad 627, while considering the question of custody under Section 17 of the 1890 Act had occasion to consider claim of custody by mother on one side and paternal aunt on the other side. After considering the claim of both the parties, the Division Bench leaning in favour of mother, had made following observations in paragraph 7:-

"7. ... As between the two Musammat Haliman Khatun, the mother and Zohra Khatun, the paternal aunt,- the mother is certainly a better person. She has natural affection. Her natural affection for her son cannot be excelled by anybody else..."

As noted above, the mother is a natural guardian, father being already dead. The grandfather, appellant No.2 was working as Electrician who has submitted an application for voluntary retirement and is running a medical store. The grandmother is not a well educated lady. The Additional Principal Judge, Family Court has held that as far as financial capacity of appellants is concerned, they can provide basic needs to the child. As observed above, the financial capacity of a person to provide basic necessities is not the only criteria on the basis of which the decision for appointment of guardian is to be based. The mother is getting salary of Rs.32,000/- per month being working as Lecturer in Government Girls Inter College. The mother being in teaching profession, has to be held to be more competent to help the daughter in education and to provide such atmosphere which may allow her to grow as well educated child. Although the right of natural guardian is not absolute but unless the natural guardian is disqualified due to any reason from having the custody of her child, normally natural guardian is not to be deprived of the custody of the child. The Additional Principal Judge, Family Court has also noted that respondent has only issue, the minor daughter, and she being young lady has to carry on her life looking to her daughter and taking care of her daughter whereas the appellants have their another daughter who lives at nearby place and has also two grand children. The husband being dead, the respondent has better claim to have custody of the minor daughter as compared to the appellants who are grand parents.

The Additional Principal Judge, Family Court has recorded in the judgment that when the child came before the Court there was positive inclination of the child towards both the parties. It was observed that although child is living with grant parents but her love to her mother is fully intact.

The Apex Court in Dhanwanti Joshi's case (supra) had laid down that welfare is an all-encompassing word. Following has been observed in paragraphs 22 and 23 of the said judgment:-

"22. We shall next consider the point which solely appealed to the Family Court and the High Court in the present proceedings namely that the respondent is financially well- off and can take care of the child better and give him superior education is USA. Lindley, L.J. in Re. vs. McGrath (Infants) 1893 (1) Ch. 143 (148) stated that:

"....the welfare of the child is not to be measured by money alone nor by physical comfort only. The word 'welfare' must be taken in its wides sense. The moral and religious welfare must be considered as well as its physical well-being. Nor can the ties of affection be disregarded."

23. As to the "secondary" nature of material considerations, Hardy Boys, J. of the New Zealand Court said in Walker vs. Walker & Harrison (See 1981 N.Z.Recent Law 257) (cited by British Law Commission, working Paper No. 96 Para 6.10):

"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"

While determining the issue of welfare of child, thus, all relevant factors have to be taken into consideration. There has to be very strong reason to deny the custody of minor child to mother who is regarded as first teacher of a child. Selfless affection, the care and nursing which a child can feel with her mother is unparallel. Swami Vivekanand in one of his lectures had said that mother represents colourless love that knows no barter. Following was said by Swami Vivekanand:-

"The highest of all feminine types in India is mother, higher than wife. Wife and children may desert a man, but his mother never. Mother is the same or loves her child perhaps a little more. Mother represents colourless love that knows no barter, love that never dies. Who can have such love?- only mother, not son, nor daughter, nor wife."

The learned Additional Principal Judge in its judgment dated 27th February, 2013 has also taken care to protect the interest of the appellants. The learned Judge has provided that appellants being grand parents can meet the child in the school according to the rules of the school as and when they desired. Further it has been observed by the Court that in winter and summer vacations, the grand parents can take the child to their residence or come to meet the child. The learned Judge, thus, while directing for giving custody of child to the mother, has protected the interest of the appellants also by providing the rights as noted above.

Taking into consideration all facts and circumstances and the findings recorded by the Additional Principal Judge, Family Court, we are of the view that no error has been committed by the Court in holding that paramount welfare of the child shall be in giving her in the custody of the respondent, the mother. We do not find any error in the judgment and order dated 27th February, 2013.

The appeal lacks merit and is dismissed.

Order Date :- 10.4.2013

Rakesh