Ayesha Bhatia vs Vijay R. Bhatia
1987 Latest Caselaw 542 Del

JUDGMENT

Sunanda Bhandare, J.

(1) Whether the mother or the father should have the interim custody of their minor son Sanjeev now aged about 9 years is the short but difficult question which falls for determination in this petition under Article 227 of the Constitution of India.

(2) Embittered and strained relationship between the petitioner mother and the respondent father resulted in filing of a divorce petition by the petitioner under Section 13 of the Hindu Marriage Act. The petitioner and the respondent were married at New Delhi on 13th April, 1973. Two male children were born out of this wedlock. Ashish who is now aged about 11 years, was born on 7th May, 1976; and Sanjeev now aged about 9 years, was born on 3rd October, 1978. After the birth of the two children, for some time the petitioner and the respondent lived together but after 1981 though there were not many serious differences between them, petitioner and the respondent lived separately; father at Ahmedabad and mother at Delhi. The petitioner visited the father and children at Ahmedabad and the respondent Along with the children also visited the mother at New Delhi. The children continued with their schooling at Ahmedabad. It was only in the year 1985 that the relations between the petitioner and the respondent got further strained and a divorce petition was filed by the petitioner in January 1986 in the Court of District Judge, Delhi. The petitioner filed an application for custody of the children during vacations. The father took a very reasonable approach and agreed to send the children to the mother during vacations. Accordingly the mother enjoyed the custody and company of her children in the summer vacation which fell due in April, i987. Another application was made by the petitioner for custody of the children during Diwali holidays in September 1987. The Court accepted this plea and the petitioner was permitted to bring the children to Delhi for Diwali. Accordingly the mother reached Ahmedabad to bring her two children on 16th October, 1987. The elder son Ashish for some reason did not accompany the mother but the younger son Sanjeev came with her to Delhi on 18th October, 1987. Under the orders of the Court the father was to come to Delhi to collect the two children to be taken back to Ahmedabad. The children were to be handed over to the father in Court on 28th October, 1987 but when the case came up before the Court on 28th October, 1987 the mother failed to produce the child in court on the plea that the child was not ready to go with the father. The court insisted on the- production of the child in court and the case was again listed before the court on 29th October, 1987. When the case came up before the court on 29th October, 1987 the mother produced the child in court. She reiterated the plea that since the child does not wish io go back to the father she be given the interim custody of the minor son Sanjeev till the question of permanent custody of the child was decided by the Court. No formal application was however made for interim custody and the court, therefore, felt that no orders could be passed for interim custody of the child on that day. The father was thus allowed to take away the child with him but directed to produce him in court the next day. Before the trial court could however hear the matter on 30th October, 1987, the petitioner moved this present petition under Article 227 of the Constitution of India. Notice to show cause was issued by the court to the father and though the child was allowed to stay with him, the respondent-father was restrained from taking away the child Sanjeev to Ahmedabad. When in the afternoon of 30th October, 1987 the parties again appeared before the trial court, since this court was already apprised of the matter, the trial court did not think it proper to interfere in the matter. The trial judge however noticed in that order that the child Sanjeev told the court in open that he wanted to stay with his mother.

(3) A very fervent appeal was made on behalf of the petitioner, for custody of the child firstly on the ground that the child was offender age and thus welfare of the child required that he be in the custody of the mother and secondly on the ground that the child had expressed his wish to stay with the mother and not with the father. This plea was most vehmently opposed by the respondent on the ground that : 1. the minor child Sanjeev should not be separated from his elder brother Ashish who is still at Ahmedabad in the custody of the respondent-father; 2. both the children were doing very well in their studies and the studies of the minor child Sanjeev should not be disturbed mid-term; and 3. the father being the natural guardian and otherwise fit to look after the minor children, should be given the custody of minor son Sanjeev.

(4) From the facts placed on record by the parties, it appears that both the mother and the father are well educated, financially well settled and employed, both love the children dearly and the minor Sanjeev is fond of both his parents. The petitioner mother is a teacher in St. Xavier School at Delhi and lives with her parents at Hauz Khas Enclave which is a fairly posh locality of South Delhi. Her father is a retired Director of Education of the Indian Air Force and her mother a qualified pediatrician is a retired Senior Medical Officer of the Food Corporation of India. The petitioner has filed on record a certificate of the Principal of St. Xavier School that the minor child Sanjeev will be given admission in Class Iv even in mid-session in the St. Xavier School which is also well reputed. The respondent father has a comfortable job in the Sales Department of Crown T.V. Though his employment takes him away from Ahmedabad occasionally he has his elderly foster parents living with him who look after the children in his absence. He also has a comfortable house to live at Ahmedabad. The children are studying in St. Xavier School, Ahmedabad where the medium of instruction is English. Excepting an allegation that the respondent is very hot tampered and beats the children, no other serious allegation is made by the petitioner against the respondent to disentitle him from getting the custody of the minor son Sanjeev.

(5) Since the petitioner had made a plea before the trial court that the child Sanjeev does not wish to go back to the father I had directed the mother to produce the child in Court so that I could ascertain the wishes of the child. Long interviews were held by me with the child alone in my Chamber on more than one occasion. I found that the child is not only bright and precautious but is very sensitive. He told me in unequivocal terms that he wishes to stay with his mother and did not wish to go back to the father at Ahmedabad. In fact, I even tried to persuade him to go back to Ahmedabad with his father at least for four months till the term was over and also because the elder brother was also at Ahmedabad and he would miss the company of his elder brother. The child did not budge at all. He expressed that he was aware that he will be missing the company of his brother but yet he did not wish to live away from his mother. He expressed to me that when his father gets enraged, he indiscriminately beats him and thus he was afraid to go back with the father. Since the minor was in the custody of his mother for about 15 days and that too during vacation, I discretely questioned the child to ascertain whether the minor child was tutored by the mother to talk against his father. The child spoke very affectionately of his father but made a very touching plea that though he loves his father and his brother he should not be sent back with his father to Ahmedabad because he could not bear to be separated from his mother. The first interview took place with the child on 6th November, 1987. The arguments could not be concluded till 11th of November, 1987. All throughout this period, though the child was at Delhi, I allowed the father to keep the child with him. On 11th November, 1987 again I interviewed the child. The child reiterated his wish arid requested that he be allowed to stay with his mother.

(6) The application for custody in the present case is under Section 26 of the Hindu Marriage Act. Though the father Under the Hindu Law is the natural guardian of a son above the age of 5 years, it does not follow that if the father is not otherwise found unfit, the custody must be always given to the father. The primary and paramount' consideration for the court in making any order under this section is the welfare of the minor in the background of all the relevant facts having a bearing on his health, maintenance and education. A child of tender age not only needs the basic requirements of food and shelter but for his proper growth he requires love and affection and tender care to satisfy his emotional needs because in these delicate years of childhood, his emotional and psychological approach towards life has also to be nurtured. This decision has to be consistent with the wishes of the minor where ever it is possible particularly if the minor is old enough to make an intelligent preference. Of course, the wish of the child is not the only decisive factor though it is one of the valid and important considerations which must weigh with the court while considering the welfare of the child. In a given case the trauma of being separated from the natural mother at tender age can have a very grave and irreparable impact on the mind of the child. This is more so if the child has unequivocally expressed his desire to live with the mother)

(7) The task of the court in deciding the question of custody is very difficult and delicate. More so when neither of the parents is unfit to look after the minor child. In the present case the task became more difficult because the fight for the moment is only for custody of one of the two children. In our society, though law relating to divorce has been liberalised, invariably the children of separated parents are the biggest sufferers. The agony and the emotional deprivation they have to undergo in their tender age cannot be compensated in any manner. In such cases the children derive consolation from each other and in times of sorrowandjoy,sharetheir feelings with each other. Separation of the children can also have an impact on the mind of the children which can hamper their proper growth. Therefore this is an important factor which must weigh with the court when it considers the welfare of the minor child for granting custody to either of the parents. However, there is no absolute rule that in such cases welfare of the children always lies in keeping them together. The Court has to come to a decision on a full consideration of facts after keeping both psychotically physical and other needs of the minor child in mind.

(8) In the present case the father is not proved to be unfit. In fact the conduct of the child indicates that the father has looked after him fairly well while the child was in his custody. Furthermore the elder child is at Ahmedabad in the custody of the father and at least for the present the mother has not pressed for his custody. Yet after giving a very serious thought, for the following reasons I have come to the conclusion that the welfare of the child rquires that the custody is given to the mother and not to the father

(1) Though the child is only about 9 years old, he is intelligent enough to make his preference and he has expressed his wish to be with. the mother in unequivocal terms in spite of the fact that he was. in the custody of his father uninterruptedly for two years prior to the filing of the present petition. If the child is separated from the mother, it will have adverse psyclogical impact on him.

(2) At the tender age of 9 years the child will be separated from his mother and he will not be able to see his mother except during holidays and that too, for short durations.

(3) There is nothing on record to indicate that the mother is unfit to look after the child. The mother comes from a cultured and educated family, teaches in a school where the child can be admittd for his studies and can spend most of her time with the child even after working hours.

(4) There is nothing to show that the child will not be properly educated or will not be brought up properly if kept with the mother.

(5) Though the two brothers will be separated from each others. during school days, they will be able to spend all their holidays together either at Delhi or Ahmedabad. The child needs the care. of the mother more than the company of the brother.

(9) Before parting with this judgment I would like to express that this decision which is going to result in the separation of the two brothers, at least for the time being, is taken by me with a very heavy heart. I only hope and wish that the parents will sink their differences for the sake of the children and ensure that the two children do not drift apart further and meet as often as possible. The parents will have to make a special effort to ensure that the child staying with them does not develop a hatred for the other parent who is away. For that purpose, in my opinion, it will have to be ensured that the elder son lives with the mother and the younger brother at" least once in a year ; and the younger son lives with the father and the elder brother also for about the same period at Ahmedabad. Since the vacations of the children may vary, appropriate orders in this regard may have to be passed from time to time.

(10) The case to be listed before the trial court on 11th December, 1987. The trial court is directed to pass appropriate orders in the light of the above observation.

(11) By order dated 12th November, 1987, I had passed the orders giving the custody of minor Sanjiv to the mother with reasons to follow. These are my reasons for the above decision.

(12) Trial Court record be sent back immediately.