Shiwani Kabra vs Shaleen Kabra
2011 Latest Caselaw 1002 Del

32
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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CM(M) 1018/2010

%                         Judgment Delivered on: 21.02.2011

Shiwani Kabra                                           .... Petitioner
                          Through:    Mr. Brijesh Kalappa, Mr. Gopal
                                      Singh and Ms. Divya Nair,
                                      Advocates


                                   Versus


Shaleen Kabra                                           .... Respondent
                          Through:    Ms. Priya Hingorani, Mr.Aman
                                      Hongorani and Mr. Santosh Kumar,
                                      Advocates
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
     1. Whether reporters of local papers may be allowed to see the
        Judgment?                                              Yes
     2. To be referred to the Reporter or not?                 Yes
     3. Whether the Judgment should be reported in the Digest? Yes

G.S. SISTANI, J. (ORAL)

1. The present petition has been filed by the petitioner mother and

is directed against the order dated 19.07.2010 passed by the

Learned Additional District judge whereby two applications of

the Respondent father seeking modification of the custody

arrangements of children in view of his transfer to J&K and for

permission to take the transfer certificates of both the children

from the school in Delhi have been allowed.

2. The brief facts that are necessary for disposal of this petition are

that marriage between the petitioner and the respondent was

solemnised on 14.02.1994. Two sons, presently of 13 and 8

years of age, were born out of the wedlock. The Petitioner and

the Respondent have been living separately since 10.04.2007

and have been involved in various litigations since then. The

respondent has filed a divorce petition under section

13(1)(i)&(1A) of the Hindu Marriage Act while the petitioner has

initiated proceedings under the Domestic Violence Act.

3. The respondent father is an IAS Officer of J&K cadre and in view

of his transfer to J&K, the respondent moved two applications

dated 25.05.2010 and 22.06.2010 seeking modification of the

custody arrangements of the two children and for granting

permission to take transfer certificates from the schools in Delhi

so as to complete the admission process of the two children in a

school in Jammu. The learned additional district judge, after

hearing both the parties allowed the applications of the

respondent father which has led to the filing of the present

petition. The trial court while allowing the applications issued the

following directions:

"33. However he (respondent) shall be required to make necessary arrangements at school at Delhi to ensure that seats of both the children are kept reserved for the current academic year by payment of necessary fee, as had been undertaken by petitioner himself. Petitioner shall ensure that he gets a Government accommodation allotted in his name at the earliest and that he makes such arrangements that children are not left in custody of servants alone and that there is some family member of the petitioner available to supervise the children in his absence. Further, respondent shall have right to exclusive custody of children for two days in every fortnight and petitioner shall be required to bear the expenses and to make necessary arrangements for her travel from Delhi to J&K and back to Delhi as well as for her lodging and comfortable stay at J&K, in accordance with his own status and standing. In case, respondent is not able

to go for meeting with the children, during her fortnightly visit, for any reason, she shall inform petitioner in advance and shall be entitled to be compensated with exclusive custody of children during their holidays for days, she misses out on meeting with the children. During the long holidays, i.e., holidays for more than four days, respondent shall be permitted to take children to meet her relatives. However, such visits shall not be more than once in three months. In case respondent wants to take her relatives or parents to meet the children at J&K, she shall be required to bear expenses of travel of her relatives of her own. Petitioner and respondent may also mutually agree that petitioner shall bring children to Delhi for fortnightly meeting with the respondent, once in two months or earlier as agreed upon by them. Petitioner shall allow respondent to speak to children at least once a day.

34. This modification in order of custody and visitation of children shall be operational for a period of six months and shall be reviewed after six months subject to the conduct of the parties as well as performance of the children in school at J&K for further posting of petitioner whichever is earlier."

4. The counsel for the petitioner submits that the learned additional

district judge has failed to appreciate the fact that considering

the age of the children the mother should be appointed as

guardian of the children. The court has further failed to

appreciate that Delhi is an education hub and that both the

children are studying in Delhi Public School, RK Puram and

Vasant Vihar respectively which are the most reputed schools of

India. The Heritage School, Jammu in which the respondent has

sought admission of the two children fades pale to the education

standards of Delhi Public Schools since it has started only in the

year 2005 and is untested in terms of its excellence and

teaching. The said school is not even preferred by the locals of

Jammu who rate Delhi Public School, Jammu or Army Public

School at Nagrota or even the Kendriya Vidyalaya to be providing

a better and higher quality education. Removing the children

from the rolls of a reputed school of Delhi would certainly be

prejudicial to the educational interests of the children in the long

run. It is further contended by the counsel that by reserving the

seats of the children in the schools at Delhi, the trial court has

reflected that it is uncertain of the arrangements made by the

respondent in J&K.

5. The counsel for petitioner next submits that while the trial court

has observed the fact that the respondent has tutored the

children and that the children were left alone at J&K with the

servants while the respondent was away at work, has

erroneously allowed the applications of the respondent and that

the trial court has been influenced by the fact that the

respondent is an IAS officer occupying a high position in the

government and thus would be in a better position to handle the

children. It is next contended by the counsel that the trial court

ought not to have granted the sole custody of the children to the

respondent by allowing him to take the children to an altogether

different state especially when the parents of the respondent

also do not reside with him. It is further submitted that granting

the custody of the children to the respondent would mean that

the children would virtually live with the servants without any

supervision of the family members. The counsel for petitioner

further submits that the trial court has erroneously allowed the

prayer of the respondent for absolute custody of the two children

and to take them to a different state on the pretext that the

respondent got the two children admitted in a Jammu school in

an utter disregard of the orders of the court.

6. Mr. Brijesh Kalappa, counsel for the petitioner, next submits that

the respondent husband being posted as the Managing Director

of Power Development Corporation, J&K, is ordinarily likely to

remain as a resident of Srinagar where the headquarters of

Power Development Corporation are situated. The Heritage

School is situated in Jammu city which is 7-8 hours by road from

Srinagar. While the respondent would be away at work, children

would be staying mostly in the company of servants as the

respondent would mostly be busy in work and at best be

available on weekends. It is the contention of the counsel of the

petitioner that the Respondent lives under administrative

difficulties and is holding a sensitive post wherein liabilities of

State fall upon him and he would not be able to take good care

of the children.

7. The counsel for the petitioner further submits that the trial court

has failed to consider that the petitioner is competent to take

care of the educational needs of the children and to provide

them with motherly love, care and protection. The petitioner is a

graduate from the Vanasthali Vidyapeeth University, Udaipur

and has done her specialisation in Home Science, Music and

Social Science. It is further submitted that though the

respondent father is very well educated, but the education of

father alone is not imperative for the overall development of the

children. It was further submitted that since the respondent,

being an IAS officer, used to return late owing to his work

pressure he had no time for the children and it was the

petitioner who has always taught the children and taken care of

their needs and it is only after the initiation of the custody

proceedings that the respondent has started taking interest in

the children. The counsel for petitioner further contends that

the petitioner has developed illicit relations with one Ms. X

(name withheld) who is a journalist in Daily News Analysis and

that she is the precipitating factor for all problems in the

matrimonial life of the petitioner and the respondent.

8. Admittedly, there was no order of the court for dividing the time

of the custody of children during the summer vacations, but

there was a mutual understanding between both the parties

since 2007 that the custody during the vacations was to be

divided in equal proportions. The respondent in utter disregard

of the aforesaid order dated 13.07.2007 and 10.06.2010 (by

which the respondent had to hand over the custody of the

children to the petitioner by 14.06.2010) fled from Delhi along

with the two children on 21.05.2010 without even informing the

petitioner and took them to Jammu. It has been contended by

the counsel for the petitioner that the admission of the children

in Heritage School, Jammu is a result of the contemptuous action

of the respondent for which a contempt petition is pending

before the learned metropolitan magistrate. The act of

admission of children in a school in Jammu is without any

permission of the court and without any information to the

petitioner depriving her of the rightful custody of the children as

per the custody arrangement agreed upon by the parties. The

counsel further drew the attention of the court on other

instances when the respondent has flouted the orders of the trial

court with regard to the custody of the children in view of his

position as an IAS Officer.

9. It has been submitted by the counsel for the petitioner that the

trial court has lost sight of the fact that while the elder son is in

his transitional stage of physical and mental human

development, the younger son is only 8 years of age and is too

young to live without his mother and the welfare of the children

lies in allowing them to stay with their mother. The counsel

further submitted that the petitioner has already undergone the

trauma of miscarriage of twins in the year 1994 and again she is

being separated from both her children vide the order of the trial

court.

10. The counsel for the petitioner places reliance on Gaurav Nagpal

v. Sumedha Nagpal reported in (2009)1 SCC 42 and more

particularly at para 42 which reads as under:

"42. 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.

43. 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 consideration is the "welfare of the child" and not rights of the parents under a statute for the time being in force"

11. The counsel for the respondent has reiterated the arguments

raised before the trial court. Ms. Hingorani, Advocate, submits

that the trial court has considered all the orders which have

been passed from time to time and while keeping the interest

and well-being of the minor children, the trial court has passed

the order modifying the custody arrangement and permitted the

respondent to take transfer certificates of both the children from

the school at Delhi for admission in school at Jammu. It is

submitted by the counsel for the respondent that the fact that

the respondent is serving in the State of Jammu & Kashmir

should not come in the way of the respondent to perform his

parental duties.

12. The Counsel for respondent submits that the petitioner is totally

incompetent to provide academic guidance to the children. It is

denied that the petitioner has done her specialisation in Home

Science, music and social science. It is contended that the

petitioner has no capability to meet the needs of modern

education as her knowledge of subjects like English, Maths,

Science, Social Studies, Computers etc is abysmal and that she

only has the option of relying on tutors. It is further submitted

that the tutors appointed by the petitioner were substandard and

inefficient. The counsel for respondent has strongly urged before

the court that respondent is in a better position to take care of

the educational needs of the children as he has a meritorious

educational background of being graduate from IIT Delhi, has

pursued his MBA from FMS, University of Delhi and is an Indian

Administrative officer of 1992 Batch. The parents of the

respondent are also well known educationists who have retired

from senior positions in education department, Rajasthan and

would be able to provide educational help to the children

whereas the petitioner has a poor academic record and the

father of the petitioner is also just 10th pass and is facing serious

criminal charge. The counsel for respondent next submits that

the custody arrangements vide order dated 24.04.2010 brought

smiles back on the children‟s face and there was great

improvement in their academic record. The children followed a

regular routine with extracurricular activities, studies, visiting

parks and a healthy food regime. It is next submitted that since

December 2008, the responsibility of the education of the

children has been shouldered on the respondent. It is further

alleged that the petitioner is extremely incompetent and careless

towards the children; she does not attend the parent teacher

meetings of the children and does not take interest in the

progress of the children. The extra-curricular activities of the

children had also come to a standstill and the academic

performance had deteriorated.

13. It is also contended by the counsel for the respondent that the

petitioner has also been totally uncaring towards the medical

needs of the children and is so indisciplined that right dosage of

medicine at right time are never administered to the children.

The counsel for respondent further submits that the younger

child has been sent to school in unclean and stinking school

uniform. On various occasions, the school tiffin given by the

petitioner to the children did not prescribe to the healthy

nutritious eating regime prescribed by the school but instead the

children were sent to school with biscuits and other unhealthy

tiffin.

14. The counsel for the respondent next submits that the petitioner

has a lose moral character and she did not take care of the

children since she was involved with a servant (name withheld)

that she had no time to look after the children. The counsel for

respondent relies on certain audio and video tapes and also call

records of the petitioner in support of the allegation that the

petitioner has illicit relations with the servant. Further, the

counsel submits that the respondent caught the petitioner

alongwith her paramour (name withheld) red handed on

08.04.2007 at his home. It has also been alleged by the counsel

for the respondent that prior to the said servant the petitioner

had illicit relations with another man (name withheld) during

their stay in Udaipur when the respondent caught the petitioner

red handed.

15. The counsel for the respondent next submits that the conduct of

the petitioner and her father is such that it would be prejudicial

to the welfare of the children if the custody is granted to the

petitioner. The counsel contends that the father of the petitioner

had married a second time in 1987 in desire of a male child who

was born in 1995. The aforementioned fact came to the

knowledge of the respondent only in the year 2003. The

petitioner‟s father threw out his second wife and son in 2005

and is presently facing trial under section 406, 498-A IPC and

also under the Domestic Violence Act. The petitioner‟s father is

also paying maintenance to his illegitimate son and second wife

under the orders of the court. It is contended by the counsel for

the respondent that home influence plays an important role in

developing the personality of the children and in the

circumstances mentioned above, the educational qualification of

the petitioner and her father and also the conduct of the

petitioner and her father would not be conducive to the welfare

of the two children in case their custody is granted to the

petitioner mother.

16. It is further submitted by the counsel for the respondent that all

arrangements have been made by the respondent for the stay of

the children in Jammu and the parents of the respondent have

also shifted with the respondent. As per the respondent, the

children would be under the supervision and control of their

grandparents and not in the custody of the servants alone as

has been alleged by the petitioner. In contrast, the counsel for

the respondent contends that the petitioner stays alone and

there is nobody to take care of the children other than the

petitioner herself.

17. The counsel for the respondent next contends that on all

occasions the two children have shown a strong desire to stay

with the respondent father only. Reliance is placed upon Nil

Ratan Kundu and Another v. Abhijit Kundu reported at (2008)9

SCC 413 and more particularly at para 52 which reads as under:

"52. 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 the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human

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, though the final decision should rest with the court as to what is conducive to the welfare of the minor."

18. Reliance has also been placed on Mausami Moitra Ganguly v.

Jayant Ganguli reported at (2008)7 SCC 673 and more

particularly at paras 10, 19 and 26 which read as under:

"10. Taking into account the material on record, the High Court found that: (i) the respondent is financially sound and able to cater to all the needs of the child for his development whereas the appellant is unable to provide the same since she is living all alone; (ii) the child is not able to reconcile with his uprooting from Allahabad and denial of love and affection of the father; and (iii) the questions which were put to the child and answers thereto indicate that the child wants to study at Allahabad. Having regard to the prevalent circumstances and the fact that the child had received his education from primary stage with his father at Allahabad, the Court came to the conclusion that the welfare and development of the child and his future would be best served at present at Allahabad in the hands of the father. Accordingly, the High Court set aside the order passed by the Family Court and granted the custody of Master Satyajeet to the respondent, with the following directions:

"1. The appellant shall make arrangement for Master Satyajeet to continue his studies in best schools of Allahabad and will ensure the development and welfare of the child in the best way possible.

2. The respondent mother Ms Mausami Moitra shall be at liberty to visit the child either in the appellant‟s house or in the premises of mutual friend or at an agreed place at any point of time and the appellant father shall not object to her meeting with the child.

3. The appellant will also allow the child to live with the mother during school vacations or on appropriate occasions.

4. Master Satyajeet shall be allowed to attend and participate in family functions/festivities subject to his school attendance and examinations, etc. which are held in the family of his mother or during any other occasions as jointly agreed to by both the appellant father and the respondent mother.

5. Any other further arrangements mutually agreed to between the appellant father and the respondent mother in the interest of the child."

Consequently, the custody of the child was restored to the father. It is this order of the High Court which is under challenge in the present appeal.

19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while 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 a 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 as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

26. Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, we are convinced that the child‟s interest and welfare will be best served if he continues to be in the custody of the father. In our opinion, for the present, it is not desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained. We feel that the visitation rights given to the appellant by the High Court, as noted above, also do not require any modification. We, therefore, affirm the order and the afore-extracted directions given by the High Court. It will, however, be open to the parties to move this Court for modification of this order or for seeking any direction regarding the custody and well-being of the child, if there is any change in the circumstances."

19. The counsel for the respondent, while relying on the facts of the

case of Tara Chand Mavar v. Basabti Devi reported in I (1989)

DMC 402, submits that the petitioner has poor educational

background and no independent source of livelihood. The

petitioner is totally dependent on her father and the

maintenance awarded for the upbringing of the two children and

on the tutors to meet their educational needs whereas the

respondent is a reputed officer in the Indian Administrative

Service who has a keen desire that his children receive good

education and are brought up in an atmosphere which allows an

overall development of the child‟s personality. The Counsel for

the respondent draws the attention of the court to the

observation in para 14 of the above case which reads as under:

"14. The trial court thought it fit of allow the child Rinku in the custody of the mother on the sole sentimental consideration that as the child has been living with his mother since his birth and the child also wants to live with his mother. The learned Judge thought it fit to allow the child to remain in custody of his mother. In our considered opinion no sentimental consideration should come in the way of deciding the custody of the child where the sole and only consideration is welfare of minor child. Minor child of 7 years cannot form any intelligent opinion about his own welfare and to give preference in whose custody the child wants to live. Therefore, merely because the minor child Rinku expressed preference to live with his mother, this cannot be said to be a proper consideration for allowing the child to remain in custody of his mother. The Court has carefully to see that sentimental consideration should not prevail over obvious welfare of a minor. The expression "welfare of the minor" has very wide meaning. It has several facts including financial, educational, physical, moral and religious welfare. Therefore, due regards should also be given to the affection and capacity for building up a good career for the child."

20. It is strongly urged by the counsel for the respondent no question

of contempt of the orders of the court arise as there are no

orders of the court restraining either party from taking the

children out of Delhi during vacations nor was there any order by

court or arrangement between the parties by virtue of which the

vacations were to be divided equally between the parties. The

order dated 13.07.2007 is completely silent in relation to

vacations. The counsel for the respondent further contends that

the respondent took the children to J&K only on 05.06.2010 and

not on 25.05.2010 as has been alleged by the petitioner. It is

further contended that the petitioner procured the order dated

10.06.2010, whereby the respondent was directed to handover

the custody of the children to the petitioner by 14.06.2010, by

misrepresentation and suppression of facts and the respondent

learned about the said order only on 18.10.2010. The counsel

further submits that the children while in J&K, completed their

holiday homework, visited various tourist spots and were always

under the supervision of the respondent or the respondent‟s

relatives visiting J&K.

21. As far as the plea of having illicit relations with the servant

(name withheld) is concerned, the counsel for the petitioner

submits that the allegation is patently wild, baseless and false

and has been levelled only with a view to prejudice the rights of

the petitioner and also with a view to deprive the petitioner of

the custody of her children. The counsel for petitioner further

submits that the respondent on one hand levels allegations of

adultery against the petitioner with the said servant in the

present petition whereas in the petition for divorce, the

respondent has alleged adulterous relationship of the petitioner

with another man (name withheld). Refuting the allegation of

the respondent, the counsel for the petitioner submits that the

respondent is involved in an extra marital relationship with a

lady journalist Ms. X (name withheld). It is further contended by

the counsel for the petitioner that the respondent and his

mother are personalities with distorted psychology and the

respondent has also placed spy cameras all over the

matrimonial home and has invaded the petitioner‟s right to

privacy.

22. As regards the audio and video tapes and the call records relied

upon by the counsel for the respondent, the counsel for the

petitioner submits that they are false and fabricated. Various

discrepancies have been pointed out in the said call records. The

counsel for the petitioner has also contended that the petitioner

is very much able to teach the children and has relied on work

sheets of Manu and Pranshu showing their excellent

performance in all subjects.

23. The counsel for the petitioner submits that on all occasions the

food sent by the petitioner prescribed to the class menu but

since the younger child complained of not liking certain foodstuff

prescribed in the class menu, the petitioner found it better to

give something to the child that he is fond of so that he does not

return from school on an empty stomach.

24. I have heard the counsel for the parties and have carefully

perused the entire material on record. The arguments of the

counsel for the petitioner can be summarized as under :

 Keeping in view the age of the children, the mother is the

right choice as guardian of the children and competent to

take care of the educational and other needs of the

children.

 Delhi is an education hub and the children currently are

studying in one of the best schools of India.

 Respondent lives under difficult administrative conditions

and would not have much time for the children. Children

would be left at the mercy of the servants.

 The respondent in a contemptuous act has got the

children admitted to Heritage School, Jammu without

informing the court and the petitioner.

 The trial court is influenced by the fact that the

respondent occupies a high post in the administration.

 Merely because the respondent is well qualified from IIT,

FMS and is an IAS officer by itself cannot lead to the

conclusion that petitioner is unfit to look after the children.

 Petitioner‟s father has engaged the best tutors for

teaching both the children.

 Children are at a tender age when they need the love and

care of the mother and not the status and position of the

father which will only spoil the children.

25. The arguments of the counsel for the respondent are

summarized as under :

 Petitioner is incompetent to meet the educational

requirements of the children as she is only a graduate in

Home science, music and social science.

 Petitioner is in an adulterous relationship with one servant

(name withheld) and has neglected the children

 Since December 2008, educational responsibilities of the

children have been entrusted upon the respondent and

the children have shown marked improvement in their

studies.

 Respondent, being a government employee, can provide

all the facilities to the children.

 Petitioner‟s father is facing criminal trial which will cast a

bad influence on the children.

 The children have shown a keen desire to stay with the

respondent.

 School record would show that the mother is disinterested

in studies of the children and does not even provide

proper tiffin or send the children in clean clothes.

26. The law with regard to deciding application with regard to

custody of children is well settled. It would be useful to refer to

some of the judgments of the Apex Court on the subject. In the

case of Anjali Kapoor v. Rajiv Baijal, reported at (2009) 7 SCC

322, it has been held:

"15. Under the Guardians and Wards Act, 1890, the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such a question cannot be decided merely based upon the rights of the parties under the law.

[See Sumedha Nagpal v. State of Delhi1 (SCC p. 747, paras 2 & 5).]

16. In Rosy Jacob v. Jacob A. Chakramakkal2 this Court has observed that: (SCC p. 847, para 7) "7. ... the principle on which the court should decide the fitness of the guardian mainly depends on two

(2000) 9 SCC 745

(1973) 1 SCC 840

factors: (i) the father‟s fitness or otherwise to be the guardian, and (ii) the interests of the minors." This Court considering the welfare of the child also stated that: (SCC p. 855, para 15) "15. ... The children are not mere chattels: nor are they mere playthings for their parents.

Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society...."

17. In Elizabeth Dinshaw v. Arvand M. Dinshaw3 this Court has observed that whenever a question arises before court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child.

18. At this stage, it may be useful to refer to the decision of the Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar 4 wherein the Court has observed, that, if a minor has for many years from a tender age lived with grandparents or near relatives and has been well cared for and during that time the minor‟s father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the bona fides of the petition by the father for their custody. In our view, the observations made by the Madras High Court cannot be taken exception to by us. In fact those observations are tailor-made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision.

19. In McGrath (infants), Re 5 it was observed that: (Ch p. 148) "... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-

  (1987) 1 SCC 42

  AIR 1935 Mad 195

  (1893) 1 Ch 143


                                  being. Nor can     the   ties   of   affection   be
                                 disregarded."

20. In American Jurisprudence, 2nd Edn., Vol. 39, it is stated that:

"... An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment."

21. In Walker v. Walker & Harrison6 the New Zealand Court (cited by British Law Commission, Working Paper No. 96) stated that:

"Welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child‟s own character, personality and talents."

(emphasis supplied)"

27. In the case of Vikram Vir Vohra Vs. Shalini Bhalla (2010) 4 SCC

409, the Apex Court has held as under:

"12. In a matter relating to the custody of a child, this Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final.

1981 New Ze Recent Law 257

They are capable of being altered and moulded keeping in mind the needs of the child.

13. In Rosy Jacob v. Jacob A. Chakramakkal7a three-Judge Bench of this Court held that all orders relating to the custody of minors were considered to be temporary orders. The learned Judges made it clear that with the passage of time, the Court is entitled to modify the order in the interest of the minor child. The Court went to the extent of saying that even if orders are based on consent, those orders can also be varied if the welfare of the child so demands.

14. The aforesaid principle has again been followed in Dhanwanti Joshi v. Madhav Unde8.

15. Even though the aforesaid principles have been laid down in proceedings under the Guardians and Wards Act, 1890 these principles are equally applicable in dealing with the custody of a child under Section 26 of the Act since in both the situations two things are common; the first, being orders relating to custody of a growing child and secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can they be squeezed in a straitjacket. Therefore, each case has to be dealt with on the basis of its peculiar facts.

16. In this connection, the principles laid down by this Court in Gaurav Nagpal v. Sumedha Nagpal 9 are very pertinent. Those principles in paras 42 and 43 are set out below: (SCC p. 55) "42. 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.

43. 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 consideration is the „welfare of the child‟ and not rights of the parents under a statute for the time being in force."

That is why this Court has all along insisted on focussing the welfare of the child and accepted it to be the paramount consideration guiding the court‟s discretion in custody order. (See Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka 10 , AIR p. 1289, para 17.)"

(1973) 1 SCC 840

(1998) 1 SCC 112

(2009) 1 SCC 42

(1982) 2 SCC 544

28. It has been repeatedly held that while considering an application

for custody of the children the Court must primarily look into the

welfare and interest of the child, which is of paramount

importance. But it is also well settled that while passing an

order, the Court must also give due consideration to the wishes

of the child if the child is mature enough to make an intelligent

preference though the final decision is of the court to see what

is conducive to the welfare of the child. In Thriety Hoshie

Dolikuka v. Hoshian Shavaksha Dolikuka reported in (1982)2 SCC

544, the Apex Court has observed as under:

"25. We may, however, point out that there cannot be any manner of doubt as to 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."

29. A similar view has been expressed in Nil Ratan Kundu v. Abhijit

Kundu (supra) which reads as under:

"Apart from the statutory provision in the form of sub- section (3) of Section 17 of the 1890 Act, such examination also helps the court in performing onerous duty, in exercising discretionary jurisdiction and in deciding the 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 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 the custody should be given."

It was further observed that

"If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision

should rest with the court as to what is conducive to the welfare of the minor.

30. The present petition is to be decided on the touchstone of the

law laid down by the Hon‟ble Supreme Court.

31. The learned trial court has been totally guided by the fact that

both the children have shown a strong desire to stay with the

respondent father since despite taking note of the fact that the

respondent has tutored the children by taking them to J&K and

also that the children were left at the mercy of the servants, the

trial court has allowed the applications of the respondent. The

trial court has not stated any reason for allowing the two

applications. It would be useful to reproduce the observation of

the trial court which is as under :

"29. The children Pranshu and Manu appeared before the Court on 08.07.2010 and were heard at length in the chamber it appears that petitioner (respondent herein) has made concerted efforts to mould the thinking of two children after taking them away with him on 05.06.2010 to J&K. From the audience given to the children, it appears that both the children were staying in a Guest House with the petitioner and were told that their friends, children of another officer from J&K cadre who had been transferred back to J&K along with the petitioner, would also be staying at J&K. While the petitioner was away at work, the children stayed at the guest house and were left by themselves to spend their day as per their wishes. The petitioner took them to the school, where he had made arrangements for their provisional admission, and made the children understand that they would be continuing their further studies in the school at J&K. The younger child Manu, however, appeared to be less tutored as he in his innocence said that he had been told that they, i.e. he and Pranshu, would then return back to Delhi. He also said that he would miss his friends at Delhi but since he would be returning back, he was not feeling much bad about it and that during vacations, his other friends had also gone away for holidays. On the other hand, Pranshu appeared to be taken into the thought of independence; he would have while staying in J&K, especially in the absence of the petitioner. The period which Pranshu and Manu had spent at J&K appeared to have given them a feeling of immense

independence without any check on their wishes and desires as to time schedule they would be required to follow, food they were to take etc. The children also mentioned that both their grandparents, i.e., parents of the petitioner were not staying with them at that time and had gone to stay at Jaipur. Thus, it is obvious that children were without supervision of any family member, while petitioner was away for work and children were left with servants."

32. The respondent has made serious allegations against the

petitioner that the petitioner is in an adulterous relationship with

the said servant and has placed on record certain audio-video

tapes and call records in support of the contention. The

petitioner has refuted the aforementioned allegation and

submitted that the said allegation have been made only with a

view to prejudice the court and to deprive the petitioner of the

custody of her children. The counsel for the petitioner further

contends that the respondent is himself in an extra marital

relationship with a lady journalist (name withheld). During the

course of proceedings on being asked about the whereabouts of

the servant (name withheld), it was revealed by counsel for the

respondent that from the past 3 years, the whereabouts of the

said servant are not known. Various material discrepancies have

also been pointed out in the call records relied upon by the

counsel for the respondent. Though a faint impression has been

created to show that a large number of phone calls were made

from a cell number which was being used by the petitioner to a

cell number being used by the said servant but since this issue

is not to be decided by this court and any impression or opinion

in this regard shall cause serious prejudice to the rights of the

parties, it would not be appropriate to give any opinion except

that in the absence of concrete evidence, this court shall refrain

itself from making any observation on the aforementioned

contention of the counsel for the respondent since the issue has

a material bearing on the final outcome of the cases pending

between the parties. I also find force in the submission of the

counsel for the petitioner that some of the call records show

phone calls being made at odd hours which would be impossible

while staying in a small flat. Even otherwise, the whereabouts of

the servant (name withheld) are unknown who was stated to be

only 17 years of age at the relevant time.

33. It has also been contended by the counsel for the respondent

that the respondent being an IAS officer and with a meritorious

educational background, is more competent to look after the

modern educational needs of the children whereas the

petitioner, being only a B.A. (Pass), is totally incompetent to

cater to the educational needs of the children. As far the present

contention is concerned, it did not find favour with the trial court

and I concur with the view of the learned trial court since

educational qualification of the parents alone cannot have any

material bearing on the issue of custody of the children.

Although in today‟s day and age what is really required is proper

guidance which can be provided by mother or the father. It has

been rightly observed by the learned trial court:

"the repeated assertions of petitioner that he is more qualified than the respondent to teach children does not inspire much confidence as children of less educated or uneducated parents also do exceptionally well in present times. Even otherwise, both the parties ought to have made joint efforts to make necessary arrangements for

education and extra coaching of the children in coordination. "

34. I do not find force in the submission that simply because the

father is very well qualified and only he can cater to the

educational need of the children and thus he must be given

custody of the children.

35. To show the indifference of the petitioner towards the children

and her careless and negligent attitude qua them, counsel for

the respondent has highlighted various instances like a note

from the class teacher wherein the class teacher has remarked

that the child is not being sent with the food prescribed in the

class menu nor any seasonal fruits are being sent; another note

from the class teacher wherein the class teacher remarked that

the child is being sent to school in unclean uniform due to his

habit of bedwetting; failure to attend the parent teacher

meetings of the children; sending the younger child to school in

unclean school uniform; neglecting the medical needs of the

children by not paying heed to the complaints of the younger

child of pain in his ear for two days who was later taken to AIIMS

by the respondent when the child started bleeding from his ear

wherein he tested positive for the initial tests for dengue. It is

contended by the counsel for respondent that the petitioner

further neglected the medical needs of the child by not

administering him the right dosage of medicine at the right time.

The counsel further drew the attention of this court to the

almanac of both the children wherein the petitioner has failed to

fill in the details of medical history of the children nor has she

provided details like blood group, family doctor etc which might

be required at the time of any medical emergency. It is next

submitted that the petitioner used to send the elder child

Pranshu to pick the younger child Manu from the bus stop. While

some of these instances do appear to be glaring, but I do find

some force in the contention of counsel for petitioner that to

deal with the child of such tender and impressionable age, she

would rather encourage the child to eat rather than to return

home on an empty stomach which only a mother‟s heart can

appreciate and one does not need to be an IIT graduate or an

IAS Officer to appreciate this.

36. The counsel for the petitioner contends that the trial court was

itself uncertain of the welfare of the child in the hands of the

respondent father and thus directed to reserve seats of both the

children in the school in Delhi. I find no merit in this contention

of the counsel for the petitioner as it is settled law that an order

of custody is never final but an interlocutory order capable of

being modified keeping in mind the needs of the child. In my

view what must have prevailed upon the trial court in reserving

the seats of the children is the ultimate welfare of the child and

that their academic year is not be wasted.

37. Both the parties have drawn the attention of the court to the

progress report of the children and the remarks given by the

class teacher. While, counsel for the petitioner has relied upon

the progress report of the younger child to show that petitioner

is fully competent and capable to teach him and the good report

cards are on proof of the same; counsel for respondent, on the

other hand, has placed reliance on the report cards of the elder

son to show that at the time when he was with the mother the

elder son‟s progress has declined and as and when the father

has been teaching both the child, his grades have improved. The

elder son has accorded the views of his father in the Chamber

meeting. The elder son has also repeated the incidents of

negligence of the mother, or her manhandling the children, or

sending the elder son to the bus stop to pick up the younger

son, all of which may not strike a 13 year old child, which would

show the extent of influence of the father on the elder son.

While during the course of hearing, learned counsel for the

respondent had admitted that whereabouts of the servant

(name withheld) are not known for the past three years and the

alleged incident would be minimum years old, the elder son did

not hesitate in referring to the incident in the Chamber meeting.

38. I have met both the children separately in the chamber. I have

also met the parties in chamber. The elder child Pranshu is 13

years of age and appeared to be tutored by the respondent

father and also swayed by the luxuries and independence he

would have in his stay with the father. He has stated in clear

terms that he does not want to stay with his mother. He further

said that the respondent father helps him in his studies and

there has been improvement in his performance only because of

the respondent. During the meeting in the chamber with the

elder son, Pranshu categorically stated that he wants to stay

with his father in Jammu and showed extreme hostility towards

his mother. The mother, in a separate chamber hearing, has also

reconciled with the fact that she is not able to handle the elder

child and his educational needs and thus, will only rely on

tuitions to cater to his academic needs.

39. The welfare of the child cannot be measured merely on the basis

of the position of the father, his social status, or the academic

degrees, or the fact that the physical comfort, which he may be

able to provide to his children. It is the duty of the Court while

considering, what is the welfare of the child, to consider the

same in the widest sense. The younger son is barely eight years

of age and is at the most impressionable age of his life and

definitely the mother would have the interest of the minor most

at heart. His tendered years would need the care, protection and

guidance of a person, who has most interest in his welfare and

who has the time to lend her years to her younger son and allow

him to rest his head on her shoulders when he needs at the

most. He would need his mother and it is the heart of the

mother, which can read the mind of the child at that age.

40. It has strongly been argued before this Court that the younger

child despite being eight years of age is in the habit of

bedwetting and the mother has not been able to consider his

bedwetting. Such psychological disorders are only a small

example of the price paid by children for the fighting of their

parents. To pull the child out from the lap of the mother, which

is known as a natural cradle, to a distant place from Delhi to

Jammu in the supervision of old grand-parents and a busy

father, would certainly not be in the welfare of the younger son.

The younger son is to be brought up in the ordinary comfort, in

an atmosphere of contentment and favourable surroundings and

only a mother at that age can put moral and ethical values in

the mind of the younger child. Hence, in the interest of the elder

son, Pranshu, he shall remain in the custody of the respondent

father.

41. The younger son Manu is just 8 years old. During the chamber

meeting, he appeared to be less tutored and has shown a keen

desire to stay with his elder brother. He also showed some

inclination to stay with his father as he gets to eat non-

vegetarian food during his stay with the father and never gets

any scolding from his father. The child showed no animosity

towards his mother and seemed open to stay either with the

father or the mother. He appeared to be very tender and

incapable of forming an intelligent preference as to whom he

wants to stay with. In any case, he is too young to take care of

his own needs. At such an impressionable age, the child does

not require only food and shelter but also motherly love and

affection to meet his emotional needs since his psychological

and emotional approach to life is still to be nurtured. Further,

there is no clinching material on record to show that the welfare

of the younger son Manu would be at peril in case the custody is

granted to the petitioner. Hence, in the interest of the younger

son, I deem it appropriate that his custody be granted to the

petitioner mother.

42. During the course of hearing, various permutations and

combinations were proposed, but were accepted by neither of

the parties. While, both the parties had agreed that more than

anything else, the children are happy to be in each others

company, generally for the present, it does not seem to be

possible for the reasons stated above with regard to younger

son. However, as far as the elder son is concerned and the fact

that he has shown a clear inclination not to stay with the mother

in future, his attitude may be hostile towards her mother and on

the other hand a fair admission on the part of the mother that

she would be unable to teach her elder son but would be able to

provide good tutors, I am of the view that it would be in the best

interest of the elder son to stay with the father, who would be

able to guide him and teach him as he is in any case more

confident of the two children. In the fitness of things, it is

directed that the younger son shall remain in the custody of the

mother; and the elder son shall remain in the custody of the

father.

43. At this stage it is agreed between the parties that both the

children will celebrate HOLI with the father this year and in the

next year the children will celebrate HOLI with the mother. For

this year the children will celebrate DIWALI with the mother and

accordingly in the next year DIWALI will be celebrated with the

father. It is further agreed that the father will meet his younger

son once a month with liberty to keep him during the weekend;

and the mother will meet the elder son once in a month when

both the brothers will stay together with the mother. It is further

agreed that in case where the holidays are of 9 days or more

than 9 days the same shall be equally shared between the

parents, and the father/ mother will ensure that the child

reaches back to the other parent in whose custody the child is

well before time that is to say at least one day prior to the

reopening of the school after vacations, in order to make the

father/ mother to prepare the child for going to school. The child

will be handed over by 11:00 a.m. and will be returned before

7:30 p.m.. This arrangement is made for the present, having

regard to the fact that father will meet the children in Delhi. But

in case the child/ children are to be taken at the place of posting

of the father, the father agrees to bear all expenses of travel.

Both the parties agree that children will be free to talk to each

other on telephone and to the parents for unlimited period and

none of the parents will cause any unnecessary hindrance or

obstruction. On the occasion of birthday of any child, it will be

open for the parent to meet the child at the place of residence of

the child. In case either of the parent wants the child/children to

accompany them at family functions, weddings, ceremonies,

promotions etc., the parties shall mutually decide the modalities

from time to time.

44. Accordingly the petition stands disposed of in above terms.

Needless to say any observations made in this order are only for

the purpose of deciding the present petition.

G.S. SISTANI, J.

February 21, 2011 „msr‟