Ms. Smita D/O. Krishna Shetty vs Shri Vinay Shankar Shetty
2004 Latest Caselaw 150 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Rule. Learned Counsel for this Respondent waives service. By consent taken up for hearing and final disposal.

2. This petition under Article 227 of the Constitution is directed against two interim orders passed by the Additional District Judge at Thane. The first of these orders dated 27th May, 2003 directed the mother of the minor child, the Petitioner before the court, to hand over interim custody to the father who is the Respondent. By the second of these orders dated 28th July, 2003 on an application filed by the Respondent the Additional District Judge directed the officer in charge of Maninagar Police Station, at Ahmedabad to make arrangements for the production of the child before the Court.

3. The parties were married on 29th December, 1991. A male child named Prithvish was born on 17th December, 1992 from the wedlock. The Petitioner filed for divorce on 12th May, 2002. A decree came to be passed in pursuance of consent terms which were filed before the Civil Jude, Senior Division, Thane. Parties agreed to a divorce by mutual consent. Clause 2 of the consent terms provided that the Petitioner shall be entitled to the custody of the minor child. The consent terms clarified that the custody shall be with the Petitioner and not with her parents. The Petitioner was not to claim any maintenance for the minor child. The Respondent was granted custody during the Summer and Christmas vacations during which period he was to deposit the passport of the minor in the court.

4. The grievance of the Respondent is that despite the consent terms that were agreed upon between the parties the Petitioner thwarted his efforts to obtain the custody of the child during the Summer and Christmas vacations. The Respondent moved an application Under Section 25 of the Guardians & Wards Act, 1890 for custody of the minor child and an application for interim custody was moved therein. There was a report of the Bailiff that the Petitioner refused to accept service of summons. The contention of the Respondent was that the minor child was staying with the mother of the Petitioner since the Petitioner was stated to being employment then at Mumbai.

5. The Additional District Judge allowed the application for interim custody holding that the petitioner was in service and that a "safe inference can be drawn" that she would not be in a position to "to afford appropriate time for the maintenance, care and welfare of the child." Hence, the Court observed that since the father was willing to look after the minor, interim custody should be granted to him.

6. On behalf of the Petitioner it has been urged that the application which was filed Under Section 25 of the Guardian & Wards Act, 1890 was not maintainable. Counsel submitted that Section 25 is attracted only, if a ward leaves or is removed from the custody of a guardian of his person. The Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. Besides, it was urged that the reasons which weighed with the Additional District Judge in granting interim custody to the father are wholly untenable. The fact that the mother is employed cannot be a reason for drawing a presumption that she is not in a position to maintain the child or to look after the welfare of the child.

7. On the other hand, Counsel appearing on behalf of the Respondent supported the interim order of the Additional District Judge and stated that an application by the father Under Section 25 of the Guardian & Wards Act, 1890 was competent.

8. The Court is informed that the Petitioner is presently working as an officer with M/s. Excel Industries Ltd. Ahmedabad. The child is presently undergoing his education in the sixth standard at the Seventh Day Adventist, Higher Secondary School at Maninagar in Ahmedabad. The welfare of the child has to be of paramount importance. At this stage the court must have due regard to the fact that when parties agreed to a divorce by mutual consent, the custody of the child was granted to the Petitioner. The Respondent is entitled to have custody of the child during the Summer and Christmas vacations. The grievance of the Respondent is that this order has not been complied with. The main application that has been filed by the Respondent Under Section 25 of 'The Guardian & Wards Act, 1890' is pending before the Civil Judge, Senior Division, Thane. The question as to whether the Petitioner has deliberately avoided granting access to the Respondent father during the vacations is undoubtedly a matter which will be decided by the Trial Court. In the event that the allegations levelled by the Respondent are held to be proved the Trial Court will then also have to address itself to the consequences that will ensue. During the pendency of the application, and at this stage, however, it would be extremely drastic for the Court to remove the child who is eleven years of age from the custody of the mother and to hand over interim custody to the father. It must be emphasized that no allegation has been made before this Court at the hearing that the child has not been properly looked after or maintained by the mother.

9. The only submission which was urged before this Court on behalf of the Respondent is that since the mother has since been transferred from Maharashtra to the State of Gujarat, the child will have to pursue his education in a different linguistic area and therefore the welfare of the child would be seriously affected. This contention is only required to be stated to be rejected. Parents of children all over the country are liable to be transferred away from their hometowns when the employment in which one or both the spouses is engaged is transferable. Undoubtedly, in matters of transfer a certain degree of hardship is likely to be caused to the family. There is, however no reason for the court to draw a presumption that a mother who has been granted custody of her child will not be in a position to look after the welfare of the child if she is transferred outside the state. The drawing of such presumptions is most inappropriate in the context of contemporary realities. Women, including single women are able to combine in themselves multitudinous roles of being able members of the workplace and successful homemakers. An interpretation which is anachronistic to the rapidly evolving position of women in society must be discarded. There is no reason in the facts of this case to hold that the petitioner would not take or has not taken necessary steps to ensure the welfare of the child. Atleast, at this stage nothing contrary is brought before the court. Hence, in my view the interim order which was passed by the Trial Judge has to be quashed and set aside.

10. During the pendency of these proceedings an order was passed by a Learned Single Judge on 19th December, 2003 recording the statement of counsel appearing for the Petitioner that the examinations of he child would get over on 20th December, 2003. The Petitioner was permitted to produce the child before this court on 23rd December, 2003. On 23rd December, 2003 a statement was made before the court that the child could not be kept present since the mother of the Petitioner was sick. There was a direction to the Petitioner to bring the child before the court on 26th December, 2003. Since this order was not complied with during the vacations nor was any explanation filed, a notice to show cause was issued to the Petitioner as to why she should not be proceeded against. The Petitioner has now filed an affidavit tendering an unconditional apology. The Petitioner has stated that she does not justify her action of not attending this court on 23rd and 26th December, 2003. She has stated that the yearly examinations of the minor child who was studying in the sixth standard got over on 19th December, 2003. Thereafter, the Petitioner has stated that she had to rush to Mangalore as her aged mother was hospitalised for a severe slip disc. The Petitioner has stated that her mother was hospitalised until 2nd January, 2004 and thereafter she had to go back to Ahemdabad where she was due to appear for her MBA examinations on 4th January, 2004. Having regard to this explanation which has been filed before the Court, it will not be appropriate for the Court to pursue proceedings against the Petitioner for non appearance in the court on 23rd and 26th December, 2003. However, it is clarified that question as to whether the Petitioner has deliberately evaded complying with the order granting access of the child to the Respondent, during the Summer and Christmas vacations would be considered separately by the Court below. Counsel appearing on behalf of the Petitioner stated that this Petitioner has entered her appearance before the Additional District Judge, and the Petitioner will duly participate in those proceedings through an Advocate.

11. In the circumstances, the impugned interim orders passed by the Additional District Judge on 27th May, 2003 and 28th July, 2003 are quashed and set aside. The Additional District Judge shall proceed to consider the main application filed by the Respondent (Misc. Application No. 116 of 2003) under Section 25 of The Guardian & Wards Act, 1890 on merits and pass appropriate orders thereon after hearing the parties. The Petition is accordingly disposed of.